Jennifer L. Achilles, Brooke T. Iley, Anthony A. Mingione, Shawn M. Wright, and Amelia Clegg
Employers will not be able to take full advantage of the DOJ’s new program if their compensation systems do not permit clawbacks from wrongdoer employees. Companies should review their existing compensation systems and consider updating them before problems arise, so that they will be in a position to take full advantage of the DOJ program should it become necessary to do so. In updating compensation systems to permit clawbacks, or expand the scope of existing clawback provisions, employers must also take appropriate steps to maintain compliance with the wage and hour laws in the jurisdictions in which they operate. Navigating these sensitive issues will be complicated and will require more coordination between employment counsel and white-collar counsel than ever before.
The Roman lawyer and orator Cicero phrased personal responsibility thus in his De Oratore: “ut sementem feceris, ita metes”—“just as you sow, so you shall reap”. This turned out to be particularly fitting for Cicero himself–after his death at the hands of Mark Antony, Antony’s wife Fulvia took Cicero’s severed head and stabbed his tongue repeatedly with her hairpin to exact revenge for his barbed attacks on her and her husband. It appears that the Department of Justice (“DOJ”) has taken Cicero’s advice to heart when drafting the revised corporate compliance policies unveiled last week at the ABA White Collar Crime Conference in Miami. The revisions reflect an ethos that corporate employees who engage in misconduct, as well as the supervisors who enable such conduct, should suffer the consequences of their misdeeds. Accordingly, the DOJ will now reward corporations for clawing back compensation from both corporate wrongdoers and their supervisors.
On March 2, Deputy Attorney General Lisa Monaco both cemented the DOJ’s recent amendments to its corporate self-disclosure program (for more detail, please see here) and announced the launch of a novel pilot program on compensation incentives and clawbacks.
Under the pilot program:
- Every corporate resolution involving the Criminal Division will now include a requirement that the resolving company develop compliance-promoting criteria within its compensation and bonus system. Companies subject to a resolution will need to revise their performance and bonus metrics to include compliance-related components. Companies may implement a system whereby executives and employees are required to forfeit their bonuses if they fail to meet certain compliance-related objectives.
- The Criminal Division will reduce fines for companies who seek to claw back compensation from corporate wrongdoers. Companies that pursue clawbacks in good faith, but are unsuccessful, may receive a fine reduction of up to 25 percent of the amount of compensation sought.
In other words, companies will be able to reduce criminal fines by clawing back, or attempting in good faith to claw back, compensation from wrongdoers and their supervisors, and the companies will be able to keep any recovered funds.
To read the full client alert, please visit our website.
Brian Wm. Higgins ●
The U.S. Department of Commerce’s National Institute of Standards and Technology (“NIST”) last week released an Artificial Intelligence Risk Management Framework (“AI RMF 1.0”). Calling it a guidance document for voluntary use by organizations in designing, developing, deploying, or using AI systems, the framework can be used to contextualize and manage the potential risks of harm posed by AI systems, technologies, and practices in all areas where they may be used.
AI-related risk management is an increasingly important issue. Documented harms traceable to AI technologies have been widely reported and threaten to undermine people’s trust in AI. Companies that make AI systems, and those that use AI to automate decisions across their organizations or enterprises, may have policies and procedures for evaluating general corporate risks from AI. But with several states and localities implementing laws requiring data-centric risk assessments, data privacy impact assessments, and bias audits around data-based technologies like AI (including New York City’s Law No. 144 that requires audits by those who use automated employment decision tools), and with Congress poised to consider national data privacy legislation containing economy-wide risk provisions, it is important for companies and organizations that make or use AI to review to ensure their approaches to risk management around AI are comprehensive and comply with applicable laws and regulations.
Continue reading “NIST Issues Guidance to Help Companies and Organizations Operationalize AI Risk Management”
Asima J. Ahmad and Anthony B. Haller
Employers grappling with the reverberations of the #MeToo movement have been able to take some solace that, with the right policies and complaint process, they can insulate themselves against liability in sexual harassment cases where the employee does not make a complaint under the internal procedure. That insulation is possible given a well-established and objectively provable legal framework.
What we know…
Where the alleged harassment is by a coworker, if the employee/victim does not complain, there is no liability because the failure to lodge a complaint and allow the employer to investigate objectively avoids any inference of negligence. Essentially, where the employer would not otherwise know of the harassment involving coworkers, it cannot be responsible.
On the other hand, if the harassment is by a supervisor, there is no resulting tangible job action (such as demotion or termination), and the employee does not complain, the employer can assert the affirmative defense established by the Faragher-Ellerth cases decided by the U.S. Supreme Court. Successful assertion of that defense involves the employer showing that it exercised “reasonable care” to prevent workplace harassment and discrimination and that the employee “unreasonably failed” to take advantage of the preventative or corrective opportunities that were in place. Continue reading ““The Times They Are A-Changing”: Can the Employer Affirmative Defense Survive in the #MeToo Era?”
Emily K. Borman
Unless you’ve been living under the Starship Enterprise, you’ve seen the laundry list of new laws recently passed by the California legislature, which went into effect this year. If you do business in the Golden State, you need a clear and concise understanding of what these new laws mean to your business. To assist, we’re rolling out a series of blog posts to spotlight some of the most far-reaching and significant California legislation to date.
Today, our focus is on #MeToo-inspired legislation, as we examine California’s newest sexual harassment laws and how they affect your business.
Now that we’ve got your attention…Warp Speed Ahead! Continue reading “#TakeTheLead: California Employment Laws Boldly Go Where No Legislation Has Gone Before”
Scott F. Cooper
A decision this week from the Ninth Circuit Court of Appeals has further fueled the debate over whether obesity is a protected impairment under federal and state law.
In Casey Taylor et al. v. Burlington Northern Railroad Holdings Inc. et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), Burlington rejected Taylor’s application to become an electronic technician because his Body Mass Index (“BMI”) placed him in the “severely” or “morbidly” obese category. Complicating this case is that the company’s chief medical officer otherwise found Taylor qualified for the position. The company also was willing to reconsider the application if Taylor undertook additional pre-hire medical screening at his own expense. The Ninth Circuit earlier this year held that shifting pre-hire medical examination costs to an applicant is unlawful.
The Ninth Circuit certified the issue and sent it to the Supreme Court of Washington to determine its application under Washington state law. Pending that ruling, the Ninth Circuit will then resolve the issue under the federal Americans with Disabilities Act (“ADA”). How these decisions come out could have sweeping implications for employers who have acted against obese job applicants and employees. Continue reading “Too Fat to Work Here?—Not So Fast”
Susan L. Bickley, Emery Gullickson Richards, and Jeanne M. Grasso
The #MeToo movement has shone new light on issues for employers in the maritime industry seeking to ensure that seafarers and shore-based personnel can participate in a work environment free of sexual harassment and assault, both shipboard and shoreside. Employees at sea, often for months at a time, can face special challenges associated with a work environment that can be thousands of miles away from any home office, and that can lead to feelings of isolation, make communications difficult, involve close proximity between work spaces and living quarters and generally require employees to remain at the workplace during rest periods.
In other sectors of the global maritime industry, companies engaged in international business can find themselves navigating scenarios that arise from expectations regarding workplace interactions between men and women that are as diverse as their workforces. We examine here the unique legal framework that applies to sexual harassment in the maritime context, what to keep in mind for addressing incidents and recent trends regarding steps employers are currently taking in response. Continue reading “What #MeToo Means for the Maritime Sector”
Asima J. Ahmad
Maryland’s legislature recently passed Senate Bill 1010 in an effort to provide victims of sexual harassment additional workplace protections. The Bill awaits the governor’s signature.
Set to be effective October 1, 2018, and titled “Disclosing Sexual Harassment in the Workplace Act of 2018” (the “Act”), the Act voids any provision in an employment contract, policy, or agreement that waives substantive or procedural rights or remedies relating to a sexual harassment claim that accrues in the future, or to a retaliation claim for reporting or asserting a right or remedy based on sexual harassment (unless prohibited by federal law). Any employer who enforces, or attempts to enforce, such a provision will be liable for the employee’s attorney’s fees and costs. The Act will apply to any employment contract, policy, or agreement executed, “implicitly or explicitly extended,” or renewed on or after the effective date; so, it seems to cover policies and agreements implemented prior to October 1, 2018 that continue in place after that date. Continue reading “New Maryland #MeToo Bill Sets Up Public Shaming and Restrictions”
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”
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”
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”