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”

DOL Bends Slightly More toward Employers—Self-Audits (Via Pilot Program) Are Back!

Jason E. Reisman

No one questions the incredibly complex and nuanced web of wage and hour regulations that the U.S. Department of Labor (“DOL”) has laid down over the last 80 or so years as guidance under the Fair Labor Standards Act (“FLSA”). Of course, in one sense, the regulations represent a grand effort to try to address just about every possible scenario implicating minimum wage and overtime pay concerns. On the other hand, the sheer volume of the regulations and embedded intricacies often leave employers scratching their heads. Well, compliance help may be on the way! In another (expected) move under Republican administration stewardship, which typically focuses on compliance assistance rather than “gotcha” enforcement, there will soon be an option for any employer that realizes it has been mistakenly out of compliance to self-report and obtain a final resolution.

The DOL’s Wage and Hour Division (“WHD”) has just announced that it will implement a new nationwide pilot program, the Payroll Audit Independent Determination (“PAID”) program, which it says is designed to “facilitate[] resolution of potential overtime and minimum wage violations under the [FLSA].” Continue reading “DOL Bends Slightly More toward Employers—Self-Audits (Via Pilot Program) Are Back!”

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”

Employers Should Encourage Their Employees to Revisit Their Tax Withholding Elections in Light of the New Tax Law

Daniel L. Morgan

Since January 1, 2018, the date changes to the tax law passed by Congress at the end of December (the “Tax Act”) became effective and provided new individual marginal tax rates and modified deductions, the Internal Revenue Service (“IRS”) has been scrambling to provide guidance as to how those changes are to be taken into account for income withholding tax purposes.

Yesterday, February 28, 2018, the IRS introduced an online calculator to help employees determine the correct amount of income taxes that they should have withheld from their 2018 wages. The IRS has also issued a new Form W-4, Employee’s Withholding Allowance Certificate. Continue reading “Employers Should Encourage Their Employees to Revisit Their Tax Withholding Elections in Light of the New Tax Law”

Additional Protections for Temporary Schedule Changes for Employees under New York City’s Paid Sick Time Law

Valerie D. Ringel and Anna Svensson

Recently, the New York City Council passed a bill amending New York City’s Paid Sick Time Law (the “Act”), aiming to protect employees seeking temporary changes to their work schedules in certain circumstances. The Act was previously amended, effective May 5, 2018, and allows employees to take “safe time” off in connection with family offense matters (such as disorderly conduct between members of the same family or household and other criminal offenses), sexual offenses, stalking and human trafficking. The bill is an expansion of the Act and permits employees to make two temporary schedule changes per calendar year, such as paid time off, working remotely, swapping or shifting work hours and unpaid leave when personal circumstances arise that would constitute a basis for permissible use of safe time or sick time. Continue reading “Additional Protections for Temporary Schedule Changes for Employees under New York City’s Paid Sick Time Law”

DOL Adopts Employer-Friendly Standard to Assess If Workers Are Interns or Employees

Stephanie Gantman Kaplan

In recent years, employers have used unpaid interns to perform many duties otherwise completed by paid employees. Determining whether to classify a worker as an unpaid intern or employee under the Fair Labor Standards Act (“FLSA”) can be tricky for employers—and getting it wrong can have, and has had, serious consequences. With the recent boom in class action litigation by interns claiming misclassification, employers have to be careful.

Earlier this month, the U.S. Department of Labor (“DOL”) announced the adoption of a new standard to determine who is an “intern” under the FLSA, opting to utilize the “primary beneficiary” analysis already used by several federal appellate courts. Continue reading “DOL Adopts Employer-Friendly Standard to Assess If Workers Are Interns or Employees”