Management's Workplace Lawyers

August 2016 E-Update

August 31, 2016

EEOC Releases Enforcement Guidance on Retaliation

On August 29, 2016, the Equal Employment Opportunity Commission released its Enforcement Guidance on Retaliation and Related Issues, an updated replacement for the retaliation portion of its Compliance Manual, which was issued in 1998. 

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NLRB Revises Backpay Formula

The National Labor Relations Board has revised its formula for calculating backpay for workers whose rights under the National Labor Relations Act were violated, finding that its traditional approach failed to make the workers whole. 

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NLRB States that Student Teaching Assistants May Unionize

Reversing a 12-year precedent, the National Labor Relations Board now holds that student teaching and research assistants at private universities may be statutory employees who can thereby unionize. 

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DOL Issues Fair Pay and Safe Workplaces (i.e. "Blacklisting") Final Rule Applicable to Government Contractors

The Federal Acquisition Regulatory Council and the Department of Labor have issued the Final Rule and Guidance implementing Executive Order 13673, “Fair Pay and Safe Workplaces,” aka the “Blacklisting” Rule. 

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7th Circuit Rejects EEOC's Expansion of Title VII to Cover Sexual Orientation and Gender Identity

The U.S. Court of Appeals for the 7th Circuit rejected the Equal Employment Opportunity Commission’s expansion of the definition of “sex” under Title VII to include sexual orientation and gender identity. 

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NLRB - Class Action Waivers

The U.S. Court of Appeals for the 9th Circuit has added to the circuit split over the National Labor Relations Board’s position that employees’ agreements to waive the right to bring a class or collective action are illegal under the National Labor Relations Act.

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Wrongful Discharge

The U.S. Court of Appeals for the 5th Circuit found an exception to the at-will employment doctrine based on a state law that restricted employers from implementing policies or rules prohibiting employees from having guns in their locked vehicles on company property. 

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FCRA – Required Notice

Frito-Lay’s nearly $1 million settlement of a class action alleging violations of the Fair Credit Reporting Act provides a strong reminder to employers of the need to ensure compliance with FCRA’s very technical authorization and notice requirements when conducting background checks through a third-party. 

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Non-Compete Agreements

The U.S. Court of Appeals for the 4th Circuit found a non-compete agreement to be overbroad and unenforceable because it barred the employee from working for a “similar” business. In RLM Communications, Inc. v. Tuschen, the employee’s non-compete agreement stated the employee would not “directly or indirectly participate in a business that is similar to a business now or later operated” by the employer in the same geographical area during her employment and for one year after. 

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SEC – Severance Agreements

The Securities and Exchange Commission is cracking down on severance agreement provisions that could possibly deter an employee from communicating with the SEC. 

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Massachusetts Law – Equal Pay

A new Massachusetts law requires equal pay for men and women performing “comparable” work, prohibits employers from asking applicants about their salary history, and prohibits pay secrecy. 

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D.C. Law – Contractor Wage Liability

 Under the District of Columbia Wage Theft Prevention Amendment Act, general contractors are vicariously liable for their subcontractor’s wage payment violations, according to the U.S. District Court for the District of Columbia in Bonilla v. Power Design, Inc..

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TOP TIP: The Defend Trade Secrets Act and Employee Agreements

Congress recently passed the Defend Trade Secrets Act (DTSA), which creates a federal private right of action for an employee’s theft of trade secrets, but also has an impact on an employer’s policies or agreements containing confidentiality provisions. 

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