Employment Law This Week®: Sexual Harassment Legislation, Browning-Ferris Appeal, DTSA Whistleblower Immunity, Salary History and Wage Gaps

by Epstein Becker & Green
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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

1. New York Passes See more +

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

1. New York Passes New Sexual Harassment Legislation

Our top story: New York says #MeToo. As part of its budget package, the New York State legislature passed new regulations concerning sexual harassment in the workplace. The bill prohibits employers from requiring pre-dispute arbitration agreements for sexual harassment cases and from subjecting sexual harassment settlements to non-disclosure agreements. Employers will be required to have a written sexual harassment policy and annual training for all employees. The legislation also expands protections to independent contractors, among other provisions. Jennifer Gefsky, from Epstein Becker Green, has more:

“The idea that employers can no longer arbitrate or require the mandatory arbitration of sexual harassment claims is going to be a big change in the future. Many employers in New York State have just regular arbitration provisions in employee contracts, and that is going to have to be amended going forward. And second, [regarding] sexual harassment settlements ... it's going to be more difficult to keep those confidential. I think it's going to provide a great incentive for employers to do everything that they can to prevent sexual harassment in the workplace, which is really the goal of the legislation. New York legislation is very much on par with what other states are doing in reaction to the #MeToo movement, but still is at the forefront of new legislation that's being passed. So I see other states in the future definitely looking to the New York law as a guideline for what they should do in their own states.”

2. DC Circuit to Hear Browning-Ferris Appeal Again

The standard for determining joint-employer status under the National Labor Relations Act remains in flux: The National Labor Relations Board’s decision to vacate their Hy-Brand ruling has now put the Browning-Ferris Industries case back in the DC Circuit. The controversial 2014 Browning-Ferris decision broadened the definition of joint employer. Just last month, the DC Circuit remanded the case back to the NLRB because Hy-Brand overruled the Browning-Ferris standard. When Hy-Brand was vacated, the Court agreed to take the case back, stating that it was "appropriate only because this case presents 'extraordinary circumstances.’” Stay tuned!

3. First DTSA Whistleblower Immunity Granted

The Eastern District of Pennsylvania appears to be the first court to grant immunity under the whistleblower provision of the Defend Trade Secrets Act (“DTSA”). The court has dismissed a trade secrets misappropriation charge based on the DTSA’s whistleblower protections. The plaintiff brought a discrimination suit against her former employer. The employer filed the misappropriation counterclaim after its lawyers received the company’s own confidential information from the plaintiff’s attorney in discovery. The court dismissed that claim based on the DTSA whistleblower immunity provision finding that providing otherwise confidential information to an attorney in a litigation was a protected act under the law.

4. Ninth Circuit: Salary History Does Not Justify Wage Gaps

Salary history is not a valid justification for unequal pay under the federal Equal Pay Act, the Ninth Circuit says: In Rizo v. Yovino, the court has held that wage history is not a “factor other than sex” under the Equal Pay Act and cannot be used “alone or in combination with other factors [to] justify a wage differential.” This decision overturns the Ninth Circuit’s own 1982 ruling and creates a split with the Seventh Circuit. The Supreme Court may weigh in on the issue next.

5. Tip of the Week

Dr. Leo Flanagan, Co-Managing Partner for The Center for Resilience, returns with more on the upside of building a resilient workforce:

“Resilient employees are 25% more proactive. They are 17% more productive. They make 60% fewer errors, and they are 30% higher on emotional and physical wellness. Resilient teams make decisions 50% faster and contribute an additional 20% to your company's bottom line. How do you get these results? First, build. Build resilience based on the latest neuroscience. Not some feel-good ideas, but on the factors that science tells us create more resilient people and teams for the long-term. Second, focus on those particular resilience factors that predict success in your organization. And thirdly, rely on scalable technology to keep the cost low and the returns high.”

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