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Employment Law This Week: $15 Minimum Wage, Dodd-Frank Whistleblower Provision, Transparency in Non-Competes, Protected Activity Under NLRA

Episode 22: Week of April 11, 2016

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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! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) California Passes First $15 Minimum Wage Law

Our top story: California approves statewide $15 minimum wage. Last Monday, Governor Jerry Brown signed a bill that will raise California’s minimum wage to $15 an hour by 2022 for companies with more than 25 employees. The increase will begin next year, moving from $10 an hour to $10.50. California—one of the world’s biggest economies—is the first U.S. state to commit to a $15 minimum wage. And the trend is continuing, with similar legislation signed in New York State last week as well. David Jacobs from Epstein Becker Green has more on the trend and what employers in California can do to prepare. For more on the New York legislation, click here.

(2) SEC Confirms Broader Interpretation of Dodd-Frank Whistleblower Provision

The U.S. Securities and Exchange Commission (“SEC”) backs in-house counsel’s whistleblower status. A tax attorney filed a wrongful termination suit against Vanguard Group Inc. for firing him after he raised questions internally about the company’s tax practices. Vanguard moved to dismiss the complaint, in part because the former employee only reported the alleged wrongdoing to the SEC after he was terminated. In some courts, this would disqualify him from whistleblower protections. But in an amicus brief, the SEC backed a broader interpretation of the Dodd-Frank Wall Street Reform and Consumer Protection Act, confirming the agency’s view that internal whistleblowing to a supervisor or compliance officer constitutes protected activity. This interpretation is aligned with the view of the U.S. Court of Appeals for the Second Circuit, but the issue may ultimately be settled in the Supreme Court of the United States.

(3) Treasury Department Calls for Transparency in Non-Competes

The U.S. Department of the Treasury (“Treasury”) puts non-competes under the microscope. A recent report from the Treasury calls for more transparency in non-compete agreements and better communication around their use. Approximately 18 percent of the workforce is subject to these restrictive covenants, and there is increasing scrutiny around them on both the state and federal levels. A recent Utah statute restricts non-competes to no more than one year, while Oregon and Alabama recently tightened their statutory restrictions. For more on the Utah legislation, click here.

(4) NLRB Takes Broad View of Protected Activity for Non-Union Worker

The National Labor Relations Board (“NLRB”) continues to take an expansive view of protected activity for a non-union employee. A former mortgage banker for Quicken Loans in Arizona was overheard using foul language to discuss a client in the office bathroom. The banker was fired after denying knowledge of the conversation. He filed a charge with the NLRB, arguing that he had engaged in actions protected under the National Labor Relations Act (“NLRA”). An administrative law judge imposed an adverse inference against the company because the other employee in the conversation did not testify. The judge then found multiple violations of the NLRA, citing the termination, the company's "overbroad" separation documents, and more. Like the Jimmy Johns negative publicity case we reported on last week, this ruling embraces a broad view of what constitutes protected activity under the NLRA. For more on the Quicken Loans case, click here.

(5) In-House Tip of the Week

Xan Raskin, President of Artixan Consulting and Strategic Consultant for EBG Advisors, Inc. (part of Epstein Becker Green’s consulting arm), gives some advice on best practices for workplace investigations. For more on EBG Advisors, click here.

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