Employers Should Take Notice of New Jersey’s Expected Equal Pay Law

Thomas J. Szymanski

The Diane B. Allen Equal Pay Act (“Act”), directed at remedying discriminatory pay practices in the workplace, was passed by both houses of New Jersey’s Legislature and awaits the signature of Governor Phil Murphy. This is not the first time that the New Jersey Legislature has passed a bill modeled after the federal Lilly Ledbetter Fair Pay Act of 2009, which made it easier to pursue pay-discrimination lawsuits—former Governor Chris Christie previously vetoed nearly identical versions of this bill, based on his stated belief that they were overly-expansive and bad for business. Governor Murphy has pledged to sign the current version of the Act into law, with an anticipated effective date of July 1, 2018. Some of the Act’s provisions, notably those providing for treble damages and a six-year look back period, could provide more employees with much greater relief for violations than the federal Ledbetter Act or other state equal pay laws. Continue reading “Employers Should Take Notice of New Jersey’s Expected Equal Pay Law”

New York #MeToo Initiatives—It’s No Longer Just an HR Issue

Stephen E. Tisman and Rither Alabre

Propelled by the Harvey Weinstein scandal and the “#MeToo” movement, New York government officials have taken new steps to protect victims of sexual misconduct in the workplace.

  • The New York County District Attorney’s Office has created a special “Work-Related Sexual Violence Team” of prosecutors to investigate reports of work-related sexual violence.
  • The New York Attorney General filed suit, in response to the announcement of the proposed sale of the Weinstein Company, for civil penalties and an order of “restitution” to victims.

These actions make clear that new layers of scrutiny are being imposed to examine how employers handle sexual harassment claims. Importantly, companies and individuals faced with such claims will confront new areas of exposure—outside of traditional human resources procedures and concerns—which must be analyzed and addressed. Continue reading “New York #MeToo Initiatives—It’s No Longer Just an HR Issue”

Blowing the Whistle Internally Is Not Enough to Be Covered by the Anti-Retaliation Provisions of the Dodd-Frank Act

Yelena Barychev and Brooke T. Iley

On February 21, 2018, the U.S. Supreme Court issued a much anticipated decision in Digital Realty Trust, Inc. v. Paul Somers that the anti-retaliation protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”) do not extend to an individual who reports alleged company misconduct only internally without submitting this information to the Securities and Exchange Commission (the “SEC”).

Paul Somers worked at Digital Realty Trust, Inc. as a vice president of portfolio management. While employed, he reported possible securities law violations to senior management but never reported this information to the SEC. Mr. Somers’ employment was subsequently terminated. He then sued Digital Realty in federal court accusing the company of violating the Dodd-Frank Act by firing him for complaining internally about alleged violations of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”). Mr. Sommers never sought relief directly under the Sarbanes-Oxley Act. The district court, and then the Court of Appeals for the Ninth Circuit, supported Mr. Somers reliance on the SEC’s broad interpretation of the definition of the term “whistleblower” under the Dodd-Frank Act. The U.S. Supreme Court reversed the judgment of the Court of Appeals for the Ninth Circuit and remanded the case for further proceedings consistent with its opinion. Continue reading “Blowing the Whistle Internally Is Not Enough to Be Covered by the Anti-Retaliation Provisions of the Dodd-Frank Act”

Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers

Scott F. Cooper and Brooke T. Iley

As the breaking news reaffirms in graphic detail on an almost daily basis, we are in a transformative time when it comes to how claims of harassment are reported and handled in the workplace. From Hollywood to Rockefeller Center, and everywhere in-between, employers must be prepared. On December 15, 2017, Blank Rome’s Labor and Employment co-chairs, Scott Cooper and Brooke Iley, held an emergency briefing by webinar entitled: “The #MeToo Movement: Are You Prepared?” Continue reading “Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers”

A Call to Action—Stamping Out Workplace Harassment

Jason E. Reisman

“This” isn’t just about Harvey Weinstein, Roy Moore, Kevin Spacey, Al Franken, Matt Lauer, or others in the news. “This” isn’t just about politicians, Hollywood, and the media.

“This” is a real problem in workplaces across the country. Every time we hear a story that sounds surreal, we want to believe it’s some type of joke. But, it never is. Although the law—and common sense—make clear that such conduct is not acceptable, it still happens. It’s been happening in the employment setting for decades. Now, with the latest revelations being broadcast across the news, it’s finally getting more widespread attention. And, “this” needs attention, as well as focused efforts at eradication. Continue reading “A Call to Action—Stamping Out Workplace Harassment”

Trick or Treat? New York City Salary History Ban Becomes Effective October 31

Anthony A. Mingione

Earlier this year, New York City amended its Human Rights Law to make it unlawful for an employer to ask about or rely on a prospective employee’s prior salary history in making hiring decisions. The amendment bans both direct inquiries from applicants and attempts at learning applicants’ previous salaries from indirect sources, such as independent research or third party conversations.

The legislation becomes effective on October 31, 2017, so New York City employers should take advantage of the remaining time before the effective date to conform their hiring practices to the new restrictions. Continue reading “Trick or Treat? New York City Salary History Ban Becomes Effective October 31”

The NLRB Pushes Protections for Social Media Comments to the “Outer-Bounds” of the NLRA

Thomas J. Szymanski

Enacted in 1935, the National Labor Relations Act (“NLRA”) was designed, among other things, to protect the rights of employees and employers, including protecting an employee’s right to engage in protected concerted activity in the workplace, such as complaining to other employees about her manager or terms and conditions of employment, without fear of retaliation by his or her employer. The National Labor Relations Board (“NLRB”), an independent federal agency with five members appointed by the president, enforces the NLRA and effectively controls its interpretation and application, subject to limited review by the courts. In less than a decade, the NLRB of the Obama administration extended the protections of the NLRA—in ways some would say were never contemplated by Congress—to employees’ work-related conversations conducted on social media, such as Facebook and Twitter. Those protections apply regardless of whether the employee is represented by a union or not. With this expansion of protection for social media activities, employers must carefully consider the NLRB’s decisions, or else proceed at their own peril. Continue reading “The NLRB Pushes Protections for Social Media Comments to the “Outer-Bounds” of the NLRA”