Recently, the U.S. Supreme Court unanimously stated that a “whistleblower” under the Dodd-Frank Act is someone who reports suspected securities law violations to the Securities and Exchange Commission (“SEC”). The Dodd-Frank Act is a federal law intended to prevent abusive financial service practices, and protects whistleblowers from retaliation for reporting violations.
In Digital Realty Trust, Inc. v. Somers, an employee internally reported possible securities violations, and was fired shortly thereafter. The employee claimed he was retaliated against for whistleblowing. However, because he did not report the alleged violations to the SEC, the Supreme Court stated that he was not entitled to protected whistleblower status under Dodd-Frank.
While this case may seem appealing to employers, companies must still take care to avoid retaliation against employees. Specifically, other federal or state protections may protect internal whistleblower complaints. Additionally, this decision may cause employees to report misconduct to the SEC in order to access the Dodd-Frank Act whistleblower protections, rather than first reporting the issue internally within the company. Ultimately, it is best practice for employers to take all complaints seriously and treat employees fairly.
April Updates
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2018 Form W-4 Has Been Issued!
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February 28, 2018
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On February 28, 2018, the IRS issued the 2018 Form W-4, which includes the updated tax table information. Although employees are not required to complete a new Form W-4 each year, it is considered a best practice. This year is particularly significant given the updated tax tables issued as a result of the December 2017 tax overhaul. Even if employees completed a Form W-4 in 2018 using the 2017 form, employers should consider making the 2018 form available in the event employees need to make changes consistent with the new tax legislation.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
© 2018 ManagEase
Keeping Up with the NLRB – The Browning-Ferris Joint-Employer Standard is Back on Top
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February 26, 2018
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Keeping up with the National Labor Relations Board (“NLRB”) can be a challenge. A mere two months after its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined a joint-employer relationship by looking at an employer’s actual control over employees, the NLRB vacated the Hy-Brand decision, causing the joint-employer standard to revert back to the August 2015 Browning-Ferris decision, which follows an indirect and reserved control standard for determining joint-employer status.
The reversal is the result of a technicality – a conflict of interest of one of the board members involved in the Hy-Brand decision. Prior to becoming an NLRB board member, William Emanuel worked for a private law firm that represented one of the companies involved in the Browning-Ferris case. When this relationship came to light, the NLRB issued an order vacating its Hy-Brand decision, stating that the board member should have been disqualified from participating in the ruling. For now, the Browning-Ferris standard is back on top. However, in light of the NLRB’s Memorandum 18-02, employers can likely expect to see continued changes on this and other topics. Stay tuned.
Action Items
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
© 2018 ManagEase
SCOTUS Limits the Definition of “Whistleblower” Under the Dodd-Frank Act
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February 21, 2018
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Recently, the U.S. Supreme Court unanimously stated that a “whistleblower” under the Dodd-Frank Act is someone who reports suspected securities law violations to the Securities and Exchange Commission (“SEC”). The Dodd-Frank Act is a federal law intended to prevent abusive financial service practices, and protects whistleblowers from retaliation for reporting violations.
In Digital Realty Trust, Inc. v. Somers, an employee internally reported possible securities violations, and was fired shortly thereafter. The employee claimed he was retaliated against for whistleblowing. However, because he did not report the alleged violations to the SEC, the Supreme Court stated that he was not entitled to protected whistleblower status under Dodd-Frank.
While this case may seem appealing to employers, companies must still take care to avoid retaliation against employees. Specifically, other federal or state protections may protect internal whistleblower complaints. Additionally, this decision may cause employees to report misconduct to the SEC in order to access the Dodd-Frank Act whistleblower protections, rather than first reporting the issue internally within the company. Ultimately, it is best practice for employers to take all complaints seriously and treat employees fairly.
Action Items
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
© 2018 ManagEase
Second Circuit: Sexual Orientation Discrimination is Prohibited Under Title VII
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February 26, 2018
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The Second Circuit Court of Appeals joins the Seventh Circuit in stating that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. Historically, the circuit courts have not included sexual orientation as a protected status under sex discrimination, which is prohibited by Title VII, but the Second Circuit acknowledged that the social and legal landscape surrounding LGBT rights have evolved.
Fourth Circuit: FLSA Lodging Credit Still Applies to Hours-Worked Agreements
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January 25, 2018
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The FLSA requires employees to be paid for all hours worked, and permits employers and employees to agree on the number of hours worked when the employee lives on the employer’s premises, provided that the FLSA’s wage and hour requirements are followed (e.g., minimum wage, overtime paid, etc.). In Balbed v. Eden Park Guest House, LLC, the Fourth Circuit Court of Appeal stated that even when an employer and employee enter into a reasonable agreement of hours worked, the FLSA’s requirements for calculating the lodging credit are still enforceable.
Seventh Circuit: Defines Application of the Ministerial Exception in Discrimination Claims
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February 13, 2018
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In Miriam Grussgott v. Milwaukee Jewish Day School, Inc., the Seventh Circuit Court of Appeal used a “totality of circumstances” approach to determine that a Hebrew teacher’s position was ministerial in nature, rendering her ineligible to pursue an employment discrimination claim under the Americans with Disability Act.
The Seventh Circuit’s decision emphasizes the need to clearly communicate an employee’s job title, duties, and the organization’s expectations.
Action Items
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
© 2018 ManagEase
California: New Advisory Notice and FAQ for Immigration Enforcement Actions
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January 1, 2018
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On February 13, 2018, the California Attorney General and Labor Commissioner issued documents intended to assist California employers in complying with AB 450. Already in effect as of January 1, 2018, the Immigrant Worker Protection Act requires California employers to limit federal immigration enforcement access to non-public areas in the worksite, among other things.
California: State Supreme Court Sets Formula to Calculate Overtime on Flat, Non-Production Bonuses
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March 5, 2018
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In Alvarado v. Dart Container Corp., the California Supreme Court stated that when calculating the per-hour value of a flat, non-production bonus for purposes of overtime, the total compensation must be divided by the number of non-overtime hours the employee actually worked during the pay period.
Maine: Employer Drug Testing Limited by Recreational Marijuana Law
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February 1, 2018
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Maine citizens voted to legalize recreational marijuana use in 2016. While recreational use of marijuana is permitted, the law allows employers to prohibit the consumption, possession, trade, display, transportation, sale, or growing of marijuana in the workplace, and employers could still maintain substance abuse policies at work. However, the drug testing provision related to recreational marijuana use, effective February 1, 2018, significantly limits an employer’s ability to perform drug tests.