Recent Blog Posts
- Equal Pay: The Evolving Landscape Equal pay for equal work has been required for many years, but, as of late, this rather static requirement has become the focal point of regulators, state and local governments, and activists. In order to achieve equality in compensation, the efforts are becoming increasingly creative with new pushes for transparency, privacy, and/or disclosures. Financial services firms are often the target and should not only be aware of these innovative measures and requirements but also consider what proactive actions to put... More
- Policies Prohibiting “Insubordination or Other Disrespectful Conduct” and “Boisterous or Disruptive Activity in the Workplace” Struck Down by NLRB Majority Once again seemingly appropriate work rules have been under attack by the National Labor Relations Board (“NLRB”). In a recent decision (Component Bar Products, Inc. and James R. Stout, Case 14-CA-145064), two members of a three-member NLRB panel upheld an August 7, 2015 decision by an Administrative Law Judge (“ALJ”) finding that an employer violated the National Labor Relations Act (“NLRA” or the “Act”) by maintaining overly broad handbook rules and terminating an employee who was engaged in “protected, concerted... More
- Agency Guidance Issued Regarding the Final Standards for Assessing Diversity Policies and Procedures of Regulatory Entities Pursuant to Dodd Frank Section 342 We previously reported that on June 9, 2015, six federal agencies (“Agencies”) subject to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Act”) issued much-anticipated joint final standards (“Final Standards”) in accordance with Section 342 of the Act for assessing the diversity policies and practices of the entities that they regulate (“Covered Entities”). See our earlier client advisory for an overview of the Final Standards which are divided into five general categories: (i) organizational commitment to diversity... More
- The NLRB Slams a Non-Union Financial Services Employer Over Its Commonplace Employee Manual Rules In a recent decision, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) ruled that Quicken Loans’s (the “Company”) Detroit, Michigan branch (along with five related entities) violated the National Labor Relations Act (“NLRA”) by using and disseminating an employee manual in its non-union workplace that the ALJ concluded interfered with employees’ rights under the NLRA. This was yet another case in which the NLRB took aim against Quicken Loans for adopting work rules and/or policies that an ALJ... More
- NLRB Finds a Non-Union Employee’s Foul-Mouthed Complaining About Clients Protected Activity and Slams Employer’s Separation Agreement A recent National Labor Relations Board (“NLRB”) decision by an Administrative Law Judge (“ALJ”) found numerous violations of the National Labor Relations Act (the “Act”) stemming from the reaction of a mortgage brokerage firm to a conversation in which one of its bankers used profanity and complained about a client in an office restroom. While this decision may seem extreme to some, it is also an example of the expansive view that the NLRB is taking in deciding what types... More
- Implementing and Applying the Employee Choice Doctrine: Employers Focus on Forfeiture to Protect Their Company’s Assets Employers seeking to protect their competitive advantage and find an alternative method of influencing employees to not compete are increasingly relying on so-called “forfeiture for competition” agreements in place of traditional non-competes. This trend is driven, in large part, by the “employee choice” doctrine. In states that have adopted the employee choice doctrine, such as New York, a post-employment non-compete will not be subject to the usual reasonableness standard when it is contingent upon an employee’s choice between receiving and... More
- SEC Finds That Employer’s Confidentiality Agreement Unlawfully Silences Whistleblowers in Violation of the Securities Exchange Act The SEC has become increasingly vigilant and aggressive about what employers say in their confidentiality agreements and the context in which they say it. We previously cautioned employers when FINRA issued a Regulatory Notice cracking down on the use of confidentiality provisions that restrict employees from communicating with FINRA, the SEC, or any other self-regulatory organization or regulatory authority. The SEC has now followed suit in In re KBR, Inc., (pdf) the SEC’s first-ever enforcement action against a company for using... More
- FINRA Reminds Employers That Employees Can Communicate with FINRA and Employers Need to Let Them Know! By Kenneth DiGia and Lauri F. Rasnick
FINRA just issued a reminder regarding its views on confidentiality provisions and confidentiality stipulations.
In Regulatory Notice 14-40, FINRA follows up on its prior Notice to Members 04-44, in which it had cautioned firms about the use of certain provisions in settlement agreements that impede, or have the potential to impede, FINRA investigations and the enforcement of FINRA actions. Specifically, FINRA had addressed settlement agreement provisions which limited, prohibited or discouraged employees from disclosing... More
- Dodd-Frank Standards Proposed for Assessing Diversity Policies and Practices of Covered Entities in the Financial Services Industry With my colleagues Peter Stein and Dean Singewald II, I recently coauthored an advisory for employers in the financial services industry: Dodd-Frank Standards Proposed for Assessing Diversity Policies and Practices of Covered Entities in the Financial Services Industry.
Following is an excerpt:
Six federal agencies (“Agencies”) subject to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Act”) issued much-anticipated jointly proposed standards in accordance with Section 342 of the Act for assessing the diversity policies and practices of the entities that... More
- Non-Unionized Financial Services Employer Found to Have Violated NLRA by Having Overbroad Confidentiality, Non-Disclosure, and Non-Disparagement Provisions in Employment Agreement By: Lauri F. Rasnick
At our October 2012 client briefing we discussed the new attitude of the National Labor Relations Board (“NLRB”) and the fact that non-unionized employers were not immune from the provisions of the National Labor Relations Act (“NLRA”). The NLRA has been increasingly applied in non-union workplaces. And most recently, it has found its way into the financial services industry. In a recent NLRB administrative law judge’s decision, provisions contained in a mortgage banker’s employment agreement were found... More