1. In this news development from Employment Law This Week®, attorney Richard J. Frey from Epstein Becker Green discusses the California Business and Industrial Alliance’s lawsuit alleging that the state’s Private Attorneys General Act (also known as “PAGA”) constitutes an improper delegation of state power.

    We invite you to view Employment Law This Week® - tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

    Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  2. This Employment Law This Week® Monthly Rundown features a recap of the most important news from November 2018. The episode includes:

    1. DOL Releases New Guidance on Minimum Wage for Tipped Workers

    The Department of Labor (“DOL”) rolls back the 80/20 rule. The rule prohibited employers from paying the tipped minimum wage to workers whose untipped side work—such as wiping tables—accounted for more than 20 percent of their time. In the midst of a federal lawsuit challenging the rule, the DOL reissued a 2009 opinion letter that states that the agency will not limit the amount of side work a tipped employee performs, as long as that work is done “contemporaneously” with the tipped work or for a “reasonable time” before or after that work. The letter was previously withdrawn by the Obama administration. Epstein Becker Green’s own Paul DeCamp, who played a leading role in litigation opposing the rule, has more:

    “The new guidance should lead to victories for employers in these cases where plaintiffs are seeking relief premised on the validity of the 80/20 guidance, which has now been withdrawn. By eliminating the 80/20 rule, the courts will see that the Department of Labor does not adhere to its position that it's had since 1988, off and on. What this will mean is that claims against the restaurant industry that rely on the 80/20 guidance will probably fail, because there is now no longer any legal basis, at least under federal law, to pursue those claims.”

    Click here for more: https://bit.ly/2zw08jv

    2. Transgender Rights in the Workplace

    The national debate over legal protections for transgender workers could be coming to a head. The U.S. Supreme Court will soon decide whether to resolve a circuit court split over whether Title VII of the Civil Rights Act of 1964 protects gay and transgender employees. Recent media reports suggest that the Trump administration is considering establishing a legal definition of “sex” that could have the effect of rolling back all federal protection for gay and transgender individuals, as well as any recognition of transgender status. In response to those reports, nearly 180 companies have signed a statement opposing “any administrative and legislative efforts to erase transgender protections through reinterpretation of existing laws and regulations.”

    3. Tech Companies End Mandatory Arbitration of Sexual Harassment Claims

    Technology companies will allow sexual harassment claims to go to court. In November, several tech companies, including Airbnb, eBay, and Square, announced that they would make arbitration optional for individual sexual misconduct claims. Microsoft and Uber have also made similar changes in the past year. While the trend is most notable in the tech industry, there has been some movement in other sectors with competitive talent markets. But in light of the Supreme Court’s Epic Systems decision earlier this year, which allowed employers to require such claims to be arbitrated, it is unclear how widespread the shift will be.

    4. NLRB Moves Forward on Joint Employment

    The National Labor Relations Board (“NLRB” or “Board”) moves forward with its new rule to redefine “joint employer” status. The extended comment period for the rule ends on December 13. Board Member William Emanuel has been cleared of any conflicts of interest for his role, so the rulemaking process should now continue on schedule. Not so fast with potential changes to the so-called “quickie election rule,” though. That Obama-era rule significantly shortened the average time between the filing of a petition and the date of votes on union representation. While many saw a 2017 Request for Comments on the rule as a sign that the Board might move forward with changes, the agency recently announced that reconsidering the election rule has been downgraded to a “long-term” action item.

    Click here for more: https://bit.ly/2xVUbuB

    5. Tip of the Week

    Finally, Michele Robertson, Vice President and General Counsel for Hospital Therapies at Mallinckrodt Pharmaceuticals, has some advice on assessing potential conflicts of interest.

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  3. This Employment Law This Week Monthly Rundown features a recap of the most important news from October 2018. The episode includes:

    1. EEOC Publishes Sexual Harassment Data

    Our top story: The EEOC publishes sexual harassment data. Coinciding with the first anniversary of the start of the #MeToo movement, the Equal Employment Opportunity Commission has released preliminary data on sexual harassment claims in fiscal year 2018. The agency filed 66 harassment lawsuits in 2018, 41 of which were claims of sexual harassment. The latter represents a 50% increase, the first increase in at least eight years. David Garland, from Epstein Becker Green, has more:

    "Employers have been aware for some time that there have been more internal issues alleging sexual harassment brought forward to Human Resources. Lawyers representing employers have been aware that there's an increase in the number of demand letters from lawyers representing individuals making sex harassment allegations. But what this data shows is we've gotten to the next phase. That phase is that charges of discrimination are being filed with the EEOC and specifically alleging sexual harassment, and we're also seeing, and this should not be minimized, it's also quite apparent in the data, that the EEOC is taking an aggressive position, filing complaints against employers making claims of sexual harassment in the workplace, as well.

    2. Paid Sick Leave in New York and New Jersey

    Paid sick leave continues to catch on across the country with some new developments in the Tri-State Area. New York City recently adopted amendments to its Earned Safe and Sick Time Act, including new requirements for employers’ written sick time policies. Just to the North, Westchester County passed its own paid sick leave law which is expected to go into effect next April. And on October 29th, New Jersey became the tenth state to implement a statewide paid sick leave law. New Jersey employers of all sizes must now provide up to 40 hours of paid sick leave per year to employees. Nancy Gunzenhauser Popper, from Epstein Becker Green, has more:

    Click here for more: https://bit.ly/2JvhXmm

    3. Seventh Circuit: Class Arbitration Decisions Belong in Courts

    The Seventh Circuit holds that the validity of class waivers should be decided by the courts. The Circuit relied on the Supreme Court’s landmark Epic Systems ruling to reverse a district court decision invalidating a mortgage company’s class action waiver. In doing so, the Seventh Circuit took on one of the ancillary issues that has emerged from the Epic ruling. The court held that the availability of class or collective proceedings is a fundamental, gateway issue and therefore should be decided by the courts and not arbitrators. The ruling aligns the Seventh Circuit with the Fourth and the Ninth Circuits. The Supreme Court is currently considering the issue this term in Schein v. Archer.

    Click here for more: https://bit.ly/2Jz6Itg

    4. The NLRB in Transition

    Changes at the NLRB are picking up pace as President Trump’s appointees settle in. The recently proposed joint-employer rule would return to the “indirect control” standard and do away with expansions under the Obama administration. The General Counsel’s office is implementing organizational changes that will centralize decision-making on cases. At the same time, the GC recently published some guidance for employers that was developed by the previous administration. Jay Sharma, Associate General Counsel for Tesla, tells us how employers like his are navigating this transition:

    "What we've seen with the recent appointments that the Board has taken a shift back to being a bit more employer friendly and balancing a little bit more rights of employers. One of the significant decisions of the recent Board was the Boeing case, which dealt with workplace rules. And the General Counsel for the Board issued some guidance, which has been very helpful for employers in dividing workplace rules into three categories. So employers now can and should review all their workplace policies with labor counsel to see where the policies fall and hopefully make them fall, revise them to make them fall into the first category, which would be upheld."

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  4. Cyberattacks have emerged as a critical threat to trade secret security. This Employment Law This Week Deep Dive episode focuses on cybersecurity and protecting your trade secrets from attacks that occur from inside your company. Attorneys Brian Spang and Brian Cesaratto of Epstein Becker Green discuss cybersecurity awareness, the Defend Trade Secrets Act and the evolution of cybersecurity, and the importance of implementing strong employee policies and planning ahead. Having a security incident response plan ready is a must for employers in this environment.

    Read on for more about this episode:

    1. Cybersecurity Awareness

    British Airways, T-Mobile—these are just a few companies affected by hundreds of data breaches that have occurred this year. October is Cybersecurity Awareness Month, and every new breach is a reminder that cybersecurity cannot be taken for granted. And while the media often focuses on foreign attackers, data increasingly shows that the bigger threat comes from inside your company. We spoke to Brian Spang and Brian Cesaratto, from Epstein Becker Green, for more.

    Brian Spang:

    "Most data breaches are caused by insiders as opposed to outside attackers. By ‘insiders,’ I mean people who already have access to your system. That includes current employees, former employees who retain access rights to your system, and potentially third-party contractors or vendors who you have granted access to your system."

    Brian Cesaratto:

    "The data is increasingly showing that insider threat to trade secrets is a growing vulnerability. And that's both because insider threat presents two types of risk: risk of an intentional malicious insider causing damage or exfiltrating trade secrets or unintentional insider threat. So, what companies should do is they should consider the type of threats they face using available data and then determine what their existing controls are and how those can be improved."

    For more, click here: ebglaw.com/eltw130-hla

    2. The Evolution of Cybersecurity

    These attacks have emerged as a critical threat to trade secret security. In 2016, Congress stepped in and tried to make it easier for companies to protect their trade secrets by taking their claims straight to federal courts with the Defend Trade Secrets Act.

    Brian Spang provides more:

    "The most significant change brought about by the Defend Trade Secrets Act is the establishment of federal subject-matter jurisdiction for trade secrets claims. Plaintiffs now may go directly to federal court without worrying about establishing diversity jurisdiction or relying on a different federal statute to establish subject-matter jurisdiction in federal court. Employers generally view federal court as a forum in which they can obtain relief more quickly and in which the cases move more quickly."

    In the past, companies have sometimes relied on non-compete agreements to help prevent insider threats or to provide an avenue for relief. But as Brian Spang tells us, the current regulatory trend is running against these agreements.

    "Regulation in this area is evolving toward restricting the use of non-compete agreements and in favoring the rights of individuals. And in certain jurisdictions, there have been recent decisions throwing out claims attempting to enforce over-broad non-compete agreements without giving the plaintiffs any opportunity to argue for modification or a narrowing of the restrictions."

    3. Employee Policies and Planning Ahead

    In this uncertain climate, ultimately the best offense is still a good defense, and that means stopping the insider threats before they materialize. The most important cybersecurity tools for employers are strong policies that shore up vulnerabilities and a firm plan for a potential incident or breach.

    Brian Cesaratto tells us:

    "The most important step that an employer can take to prepare for a security incident is to have in place a security incident response plan and to train employees and managers in the implementation of the plan. Planning ahead of time is important because that way, when the time comes and there is a crisis, the company's not reactive. It's not attempting to address the issue under stress where there's no plan in place."

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  5. On October 1, New York State released final guidance and updated materials in connection with the state’s newly enacted laws concerning sexual harassment measures that mandate enhanced policies as well as training for all employees. New York’s new sexual harassment laws will take effect on Tuesday, October 9, 2018, and mandate that employers must complete compliant training for all current employees no later than October 9, 2019. Employers also must provide such training for all new hires within a reasonable time of their hire dates. Meeting these deadlines to provide and complete compliant training should now be top of mind for all employers.

    The New York guidance came the day after California Governor Jerry Brown signed four new #MeToo-inspired laws.

    We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

    Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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Employment Law This Week®

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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management…


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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management issues in about five minutes, each week.

Tune in each week for developments that may affect your business. Learn more at ebglaw.com/employment-law-this-week/

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