On May 21, the United States Supreme Court held that mandatory arbitration agreements containing class action waivers are to be enforced as written.  In Epic Systems Corp. v. Lewis, a trio of consolidated appeals, the Court rejected arguments by employees that section 7 of the National Labor Relations Act (“NLRA”) – which permits employees to engage in “concerted activity” for the purposes of “collective bargaining or other mutual aid or protection” – grants employees a statutory right to assert legal claims (such as claims under federal and state wage and hour laws) on a class or collective basis.

This decision is significant for employers nationwide. Since 2012, the National Labor Relations Board (“NLRB”) has asserted that such waivers violate the NLRA, forcing employers to choose whether to (a) risk violation of the NLRA, (b) implement an opt-out procedure that some courts had concluded might comply with the NLRA, or (c)

The Supreme Court held that an individual must report alleged wrongdoing to the Securities and Exchange Commission in order to qualify for protection from whistleblower retaliation under the Dodd-Frank Act.

Click here to read the Alert written by Bryan Cave attorneys on 2/21/18.

For more information about the SEC Whistleblower Program, click here. For more information about this update, or if you have any questions regarding Bryan Cave’s White Collar Defense and Investigations or Securities Litigation and Enforcement Groups, contact Mark Srere or Jennifer Mammen in Washington, D.C., at +1 202-508-6000, or for Bryan Cave’s Labor and Employment group, contact Elaine Koch or Jennifer Berhorst in Kansas City, MO, at +1 816-374-3200.

The DOJ has indicated that it intends to prosecute companies that have entered into no-poaching agreements, an activity that has previously only been subject to civil enforcement. No-poaching agreements are arrangements between companies to not solicit or hire each other’s employees. Companies engaged in this conduct do not have to compete for customers to be susceptible to government scrutiny; they only need to compete for the same employees.

Our Antitrust practice group has recently written a client alert on this topic. Click here to read the full alert.

On October 16, 2017, the Supreme Court rejected an employee’s petition for review of a decision in Stevens v Rite Aid Corporation.[1]  Stevens sued under the Americans with Disabilities Act (“ADA”) for alleged discriminatory discharge claiming trypanophobia or “fear of needles” as a disability.  Rite Aid discharged Stevens, a pharmacist of 32 years (with Rite Aid and its predecessors), after he refused to comply with Rite Aid’s requirement that pharmacists administer immunization injections to its customers.  The Second Circuit held that administering injections was an essential function of the pharmacist position at the time of his termination, and therefore, concluded that Stevens was not a “qualified individual” with a disability.

At trial, Rite Aid personnel testified that the company made a business decision to start requiring pharmacists to perform immunizations.  While courts are required to consider a variety of factors under Equal Employment Opportunity Commission’s (EEOC) regulations, many

Bryan Cave lawyers Mark Srere and Jay Zweig will present a timely and informative live presentation on whistleblowing in the workplace on Wednesday, January 10, 8:00 – 9:30 a.m. (MT)

The Phoenician Resort 6000 E Camelback Rd Scottsdale, AZ 85251

Whistleblowing in the workplace raises challenging employment law and civil and criminal liability issues for employers. News media coverage of and social media campaigns on everything from sexual harassment to financial reporting, to government contracting, to environmental issues, and a host of other laws have resulted in a large number of whistleblowing claims. This program will address what employers must do to prepare for the time when an employee blows the whistle internally, or reports to law enforcement. Our presenters will discuss and answer your questions on:

• The legal protections for whistleblowers;
• How to effectively investigate a whistleblower complaint;
• How employers can manage a whistleblower after a complaint so as to
  

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

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

Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”).  After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.

Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee.  If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.

Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:

• Have a solid basis for initiating an investigation. FMLA investigations should not
  

On July 6, 2017, a three-judge panel of the United States Court of Appeals for the Tenth Circuit reiterated that physical attendance in the workplace is an essential function of most jobs and emphasized this is particularly true for temporary workers filling short-term vacancies.

In Punt v. Kelly Services, the plaintiff, Kristin Punt, was a temporary worker assigned to work for GE Controls Solutions (“GE”) as a receptionist.  The essential functions of that job included being “physically present at the lobby/reception desk during business hours.”  However, during her six weeks in the position, Ms. Punt was absent or tardy on multiple occasions, often due to medical appointments related to a recent diagnosis of breast cancer.  GE terminated her assignment after she informed GE on a Monday morning that she planned to be absent the entire week and would need unspecified additional time off for “some appointments and tests” and “five

On May 26, 2017, the Texas Supreme Court addressed whether Texas recognizes a defamation claim for compelled self-publication.  The Texas Supreme Court, joining a number of other states, including Connecticut, Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania and New York, rejected a claim of compelled self-defamation in Texas.  Other states, such as California and Colorado, recognize a claim for compelled self-defamation.

Generally speaking, a defamation claim includes the following elements:

The issue regarding “compelled self-publication” relates to the first element.  Specifically, does the publication have to be made by the defendant or can it be made by the plaintiff.

In Exxon Mobile, the plaintiff, Gilberto Rincones, was a catalyst technician and was required to take and pass a drug test.  Mr. Rincones failed a