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This week’s stories include ...
(1) Summary Judgment Granted in Whistleblower Case
Our top story: A Dodd-Frank whistleblower case is dismissed in the U.S. District Court for the Southern District of New York. The court granted the employer’s summary judgment motion, ruling that two executives could not causally connect their termination to what the judge found to be vague complaints about the company's internal controls. The judge noted that the three months between the executives’ activity and their termination was too long to be considered connected, without any corroborating evidence. Jason Kaufman, from Epstein Becker Green, has more:
"It's a solid win for employers, and it also provides valuable guidance to them on how they can avoid these claims and defend against them in litigation, if necessary. This case was decided largely on a lack of temporal proximity, and one key takeaway from this is that timing can be critical. Timing is not a silver bullet that automatically defeats these claims. In this case, the court found that two or three months between the protected activity and the adverse personnel action was insufficient to establish temporal proximity. But that may not always be the case. An employer should not rely solely on the lack of temporal proximity to defend themselves from retaliation matters. They should be prepared to come forward with demonstrable grounds for terminating an employee."
(2) Job Applicants Can File ADEA Claims
A district court in California has ruled that job applicants can bring disparate impact claims under the federal Age Discrimination in Employment Act (ADEA). A putative class of job applicants filed suit against PricewaterhouseCoopers (PwC) under the ADEA. PwC filed a motion to dismiss, arguing that the disparate impact section of the ADEA does not apply to applicants. This interpretation has been embraced by the Eleventh Circuit, but here, the district court disagreed, pointing to language in the statute that applies protections to “any individual.” Based on that language, an analysis of U.S. Supreme Court precedent, and other authorities, the district court denied PwC’s motion and allowed the claims to proceed.
(3) Miscimarra Indicates the Future Trump NLRB
Philip Miscimarra, Acting Chairman of the National Labor Relations Board (NLRB), has given a strong indication of the changes likely to come once President Trump fills vacant seats on the NLRB. In a sharply worded dissent, Miscimarra doubled down on his disagreement with the NLRB’s controversial 2014 rule on union representation elections. Miscimarra argues that the rule’s heavy emphasis on election speed interferes with an employee’s right to make informed decisions on union representation and is inconsistent with the requirements of the statute. In another dissent, he argues that the NLRB’s current standard for reviewing employee handbook provisions “defies common sense” and should be replaced with a test balancing competing interests.
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(4) Proposed Regulations Issued for NY Paid Family Leave
The Empire State will soon join the list of states enacting paid leave laws. The New York Workers Compensation Board has issued proposed regulations for the state’s Paid Family Leave Law. The law will require employers to provide paid family leave to all eligible full- and part-time workers. Employers would need to provide eight weeks of leave in 2018, increasing to 12 weeks by 2021. In addition, part-time employees would be eligible to receive a pro-rata portion of paid family leave. Employee handbooks that describe leave benefits would also need to be amended to include guidance regarding the Paid Family Leave Law.
(5) Tip of the Week
Craig Dinsell, a Partner at Sheep & Wolves Media, shares some advice on managing “culture risk”:
“Major resources go into managing operational risk, technology risk, regulatory risk, financial risk, but culture risk is the big one. . . . The good news is that businesses can build a resilient climate and thrive through times of change and ambiguity. To grasp this transformational opportunity, it’s necessary to focus on building culture. So here’s some advice. . . . Capture the imagination of employees and clients through creating a cultural experience that is not easy for the competition to replicate. Build metrics that will track cultural progress. And finally, and perhaps most important, hold yourself and others accountable for results.”