Protected Activity

News & Analysis as of

Vote YES! for Compliance: An Election Law Refresher for California Employers

Seyfarth Synopsis: Under California law, employers have a part to play in protecting employee voting rights and other political activity. What follows is a short reminder of employer duties and obligations. With the...more

Work Rules Hanging in the Balance? NLRB Dissenter Proposes Balancing Test Blueprint for Work Rule Challenges, a Significant...

Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer’s Code of Conduct. Ho hum, business as usual. What is fascinating, however, about this otherwise unremarkable...more

Still Cookin’ In California Court: Bakery Employer Survives EEOC Motion For Summary Judgment

In what has become an oft-used recipe in the EEOC cookbook of Title VII retaliation litigation, the government has once again utilized the strategy of taking an employer’s deposition and thereafter moving for summary...more

The New California Regulations Part IV: Support Animals in the Workplace

The California Office of Administrative Law recently approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the...more

California FEHA Forecast: Evidence of Pretext Required in Anti-SLAPP Case Against TV Stations

On January 19, 2016, a California Court of Appeal issued an unpublished decision in Hunter v. CBS Broadcasting, Inc. The case was brought by Kyle Hunter, who filed an employment discrimination complaint, claiming that two...more

Blowing the Whistle on Food Safety: OSHA Issues a Final Rule Related to FDCA Complaints

On April 18, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has issued procedural rules for enforcement of whistleblower complaints alleging violations of the...more

Unworkable Employer Work Rules: The Board Once Again Makes Perfection the Enemy of the Good

The Board majority holds firm to its standard for evaluating employer work rules despite Member Miscimarra’s vigorous dissent advocating for a new, clearer standard that takes into account an employer’s legitimate business...more

Nursing Manager, Removed from Patient Case, Seeks Supreme Court Review in Discrimination Case

Petitioner to the Supreme Court claims that the Sixth Circuit engaged in a “separate but equal” rationale when it rejected her claim that her employer discriminated against her based on race after the employer allegedly...more

Job Applicant Was Rejected Due to Dishonesty, Not Prior Lawsuit, Says Sixth Circuit

On April 8, 2016, the Sixth Circuit Court of Appeals affirmed a judgment in favor of an employer in Hance v. BNSF Railway Company, a failure-to-hire retaliation case brought under the Uniformed Services Employment and...more

SOX Whistleblower Receives $250,000 Award Related to State Wage Act Complaints

The ARB recently concluded that a former program manager was entitled to recover more than $250,000 in back pay and benefits under Section 806 of SOX based on his discipline and constructive discharge. The ARB clarified that...more

A Review of Recent Whistleblower Developments

SEC Awards Bounty to Whistleblower, But Offsets Award for a Judgment Against the Whistleblower - The extent to which the SEC would reward whistleblowers, who themselves engaged in wrongdoing, has been the subject of...more

Employee Benefits & Executive Compensation Advisory: The ACA: New Concerns for Employer Plan Sponsors Under the Fair Labor...

The Affordable Care Act (ACA) anti-retaliation provisions have been in effect for several years, but have so far largely gone unnoticed. Now that employees can get financial assistance through the Health Insurance...more

OSHA Continues to Turn Up the Volume on Whistleblowing

Rushing to put final rules in place before the current Administration’s term ends, on March 17, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule for implementing the whistleblower...more

SEC Intervenes In Former In-House Attorney’s Whistleblower Lawsuit

On March 28, 2016, the U.S. Securities and Exchange Commission (“SEC”) filed an amicus brief in a whistleblower lawsuit brought by a former in-house attorney against Vanguard Group (the “Company”).  The case is Danon v....more

Fifth Circuit Provides Guidance on Who Has Standing to Pursue an FCA Retaliation Claim

In United States ex rel. Bias v. Tangipahoa Parish School Bd., — F.3d —-, 2016 WL 906227 (5th Cir. 2016), the Fifth Circuit provided guidance on the scope of individuals with standing to bring an FCA retaliation claim under...more

OSHA Releases Final Dodd-Frank Whistleblower Regulations

OSHA recently released its final rule implementing the whistleblower provisions of the Consumer Financial Protection Act of 2010 (“CFPA”).  The following are the key features of the rule...more

The NLRB Rules That Chipotle’s Handbook Policies Violated the NLRA

As we have previously covered the NLRB has opined that various common handbook provisions are unlawful under the NLRA because they may have the effect of inhibiting employees from engaging in protected activities, such as...more

California Employment Law Notes - March 2016

Nuclear Plant Maintenance Manager's Whistleblower Claim Was Properly Dismissed - Sanders v. Energy Northwest, 2016 WL 560809 (9th Cir. 2016) - David W. Sanders, a maintenance manager for Energy Northwest (a...more

OSHA issues new whistleblower investigations manual with aggressive new standard

Employers are familiar with the Occupational Safety and Health Administration’s (OSHA) enforcement of workplace safety standards, but OSHA also enforces the whistleblower provisions of 21 other federal laws in addition to the...more

ARB Rejects SOX Claim of Employee Who Threatened Co-Worker

On February 18, 2016, the ARB dismissed a former employee’s whistleblower retaliation claim under Section 806 of SOX, concluding that he failed to show that his protected activity contributed to the decision to terminate his...more

A Negative Review May Be Protected Activity Under U.S. Employment Law

Yelp, Inc. is more accustomed to being on the giving—rather than the receiving—end of a negative review. That changed recently when a Yelp customer service employee, Talia Ben-Ora, posted an open letter to Yelp’s CEO on her...more

Can Your Employees Take A Selfie At Work?

Many employers maintain policies prohibiting employees from using cell phones and other recording devices at work. The reasons for such policies range from maintaining productivity, to protecting customer and employee...more

Third Circuit Clarifies Prima Facie Burden of Whistleblowers for SOX Retaliation Claims

On February 2, 2016 the Third Circuit addressed Weist v. Tyco Electronics Corp., for a second time and, on this occasion, affirmed an Eastern District of Pennsylvania order granting summary judgment to Tyco. This second...more

EEOC Guidance on Retaliation: An Unprecedented Interpretation of Federal EEO Law

This next installment of our ongoing series takes a closer look into the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues. Last week, we discussed the...more

Does Employees’ Use of Apps Lead to Violations of Workplace Policies?

The constant and evolving release of new apps used by employees both personally and in the workplace continue to present challenges to employers in the implementation and execution of workplace policies designed to protect...more

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