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SEC Announces More than $20 Million in Whistleblower Awards

In the course of one week, the United States Securities and Exchange Commission announced awards to three whistleblowers totaling more than $20 million under the Dodd-Frank Whistleblower Program.

On November 30, the SEC announced awards of more than $8 million each to two whistleblowers. The first individual alerted the agency to conduct that became the subject of an enforcement action and continued to provide additional information throughout the investigation, while the second whistleblower provided information that allowed the agency to understand and asses the implications of the misconduct. Under the Whistleblower Program, eligible whistleblowers may receive awards of between 10% and 30% of the sanctions collected in actions brought by the SEC and related actions brought by other authorities. To maintain the confidentiality of the individual whistleblower, the SEC does not release information regarding the target of the investigation or the percentages of awards granted to the whistleblowers, but in

You’ve Been Warned: California’s WARN Act Is Broader Than the Federal Warn Act

As with so many other situations involving California’s employment laws, its protection for California-based employees experiencing a job loss is broader than the protections under federal law.  In The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 998, et al. v. Nassco Holdings Inc., et al., the California Court of Appeal, Fourth Appellate Division held, among other things, that California’s version of the Worker Adjustment and Retraining Notification (“WARN”) Act is broader than its federal counterpart.

The specific issue the court addressed was whether a furlough of several weeks constituted a “layoff” for purposes of a “mass layoff,” triggering the 60-day notice period when 50 or more employees at a covered establishment experience a “layoff” during any 30-day period.  The defendant argued unsuccessfully that no notice was required because its work stoppage was only for a brief period and therefore its action was not a “layoff” or

2018 Exemption Limits for the Computer Professional and Physician Exemptions

Effective January 1, 2018, California’s Department of Industrial Relations will begin imposing new rates for the computer software employee exemption and the licensed physician and surgeon exemption to reflect a 2.9% increase in the California Consumer Price Index (CCPI) for Urban Wage Earners and Clerical Workers.

To be exempt from overtime requirements, a computer software employee’s rates have increased as follows:

  • Minimum hourly rate:  From $42.35 to $43.58
  • Minimum monthly salary:  From $7,352.62 to $7,565.85
  • Minimum annual salary:  From $88,231.36 to $90,790.07

The minimum hourly pay for licensed physician and surgeon exemption has increased from $77.15 to $79.39.

Relatedly, the professional, executive and administrative exemptions will also be subject to change after the minimum wage increase takes effect on January 1, 2018.  To qualify as exempt under these classifications, employees must be paid at least two times the state minimum wage in addition to meeting the other exemption

Mass Dismissal Filings in Germany – Do Leased Employees (“Leiharbeitnehmer”) Count?

November 29, 2017

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Collective redundancies and the complex issue of relevant dismissal thresholds for notification of the German Federal Employment Agency (“Bundesanstalt für Arbeit” or “the Agency”) were already addressed in an earlier June post this year.

On November 16, 2017, the Federal Labor Court of Germany (“BAG” or “the Court”) submitted a case (BAG – 2 AZR 90/17) to the European Court of Justice(“ECJ”) which dealt with so-called leased employees. The question was whether, and under what requirements, leased employees or temporary workers need to be taken into account when applying the thresholds for mass dismissal filings in accordance with Sec. 17 I (1) Nr. 2 Kündigungsschutzgesetz/ KSchG (the German Act against Unfair Dismissal). Because this German Sec. 17 KSchG is based on the European Council Directive 98/95/EC, the Court had no choice but to submit this question to the ECJ. Until the ECJ has ruled – which may easily take

Biometric Privacy Targeted In Increased Class Action Litigation in Illinois

Even as technology advances and consumers become more accustomed to providing their fingerprints in routine, everyday transactions (such as unlocking their cellular phones), private entities, and employers in particular, are under attack in the courts for their use of finger-scan and biometric technology.

The Illinois Biometric Information Privacy Act (“BIPA”), effective since October 2008, regulates the collection, use, safeguarding, handling, storage, retention, destruction, and disclosure of biometric identifiers and information. The BIPA, however, was largely ignored until mid-2015 when the first wave of BIPA litigation was filed against social media and photo-storage/sharing services.

BIPA litigation has now turned its attention to employers. Since August 2017, in Cook County, Illinois alone, more than 30 class action lawsuits have been filed in state court alleging violations of the BIPA, mostly based on employers’ use of finger-scan technology for timekeeping tracking. The recent lawsuits generally allege that employers have collected, stored, and/or used

Tips For Drafting Employee Handbooks – Tip #6: Requiring Acknowledgement Forms

This article is the last part of a six-part series.   The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #6 discusses why it is helpful for an employer to require its employees to sign employee handbook acknowledgement forms.

Tip

Tips For Drafting Employee Handbooks – Tip #5: Updating Handbooks to Address Changes in the Legal Landscape

This article is part five in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #5 focuses on the importance of consistently updating employee handbooks.

Tip #5: Updating Handbooks to Address Changes in the Legal Landscape

Following the Weinstein Allegations, Improving Workplace Culture

The wave of sexual harassment allegations against high profile media moguls such as Harvey Weinstein, Bill O’Reilly, and Mark Halperin has put sexual harassment issues in the public spotlight.  All employers, even those not in the “biz,” should take this opportunity to review their sexual harassment training and policies and consider ways to improve their workplace culture.

In a recent exclusive interview with Law360, the Equal Employment Opportunity Commission (“EEOC”) acting Chair Victoria Lipnic reiterated the EEOC’s focus on sexual harassment and retaliation across a wide range of industries. See Law360, “We See This Everywhere, EEOC Chair Says of Weinstein,” Braden Campbell (Oct. 24, 2017), available at https://www.law360.com/employment/articles/977719/-we-see-this-everywhere-eeoc-chair-says-of-weinstein?nl_pk=2905a360-50ef-439a-8c8c-a294a6bf3896&utm_source=newsletter&utm_medium=email&utm_campaign=employment. Lipnic’s interview highlights the importance for employers to review their policies and take affirmative steps to create a positive work environment.

According to Lipnic, “We see this everywhere. This happens to women in workplaces all over the place.  You look at

Employee Representation in Germany – Part 1

November 7, 2017

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Part I of III: The Works Council in Germany

“Works Councils – not again!” Every four years there will be new elections for the most important employee representative body in Germany. This coming March 2018 works council (re)elections will (again) take place in Germany. This blog series deals with the institute of the works council in Germany and will consist of three parts. Part I will provide you with an overview regarding its establishment, its structure, its rights and responsibilities, the election procedure and the costs related to it.

Establishment

The works council is the main employee representative body at company level. In any operation (Betrieb) with more than five regular employees a works council (Betriebsrat) can be elected at the full discretion of the work force. In addition, a joint works council (Gesamtbetriebsrat) must be established if a company has more than one works council. For a corporate group,

Tips For Drafting Employee Handbooks – Tip #4: Avoiding Invasion of Privacy Claims

This article is part four in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #4 addresses how including certain information in an employee handbook may help an employer defend against invasion of privacy claims.

Tip #4: Avoiding Invasion of Privacy Claims

An employer’s investigation of an employee’s potential misconduct can give rise to various claims relating

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