This Employment Law This Week Monthly Rundown features a recap of the most important news from October 2018. The episode includes:

1. EEOC Publishes Sexual Harassment Data

Our top story: The EEOC publishes sexual harassment data. Coinciding with the first anniversary of the start of the #MeToo movement, the Equal Employment Opportunity Commission has released preliminary data on sexual harassment claims in fiscal year 2018. The agency filed 66 harassment lawsuits in 2018, 41 of which were claims of sexual harassment. The latter represents a 50% increase, the first increase in at least eight years. David Garland, from Epstein Becker Green, has more:

"Employers have been aware for some time that there have been more internal issues alleging sexual harassment brought forward to Human Resources. Lawyers representing employers have been aware that there's an increase in the number of demand letters from lawyers representing individuals making sex harassment allegations. But what this data shows is we've gotten to the next phase. That phase is that charges of discrimination are being filed with the EEOC and specifically alleging sexual harassment, and we're also seeing, and this should not be minimized, it's also quite apparent in the data, that the EEOC is taking an aggressive position, filing complaints against employers making claims of sexual harassment in the workplace, as well.

2. Paid Sick Leave in New York and New Jersey

Paid sick leave continues to catch on across the country with some new developments in the Tri-State Area. New York City recently adopted amendments to its Earned Safe and Sick Time Act, including new requirements for employers’ written sick time policies. Just to the North, Westchester County passed its own paid sick leave law which is expected to go into effect next April. And on October 29th, New Jersey became the tenth state to implement a statewide paid sick leave law. New Jersey employers of all sizes must now provide up to 40 hours of paid sick leave per year to employees. Nancy Gunzenhauser Popper, from Epstein Becker Green, has more:

Click here for more: https://bit.ly/2JvhXmm

3. Seventh Circuit: Class Arbitration Decisions Belong in Courts

The Seventh Circuit holds that the validity of class waivers should be decided by the courts. The Circuit relied on the Supreme Court’s landmark Epic Systems ruling to reverse a district court decision invalidating a mortgage company’s class action waiver. In doing so, the Seventh Circuit took on one of the ancillary issues that has emerged from the Epic ruling. The court held that the availability of class or collective proceedings is a fundamental, gateway issue and therefore should be decided by the courts and not arbitrators. The ruling aligns the Seventh Circuit with the Fourth and the Ninth Circuits. The Supreme Court is currently considering the issue this term in Schein v. Archer.

Click here for more: https://bit.ly/2Jz6Itg

4. The NLRB in Transition

Changes at the NLRB are picking up pace as President Trump’s appointees settle in. The recently proposed joint-employer rule would return to the “indirect control” standard and do away with expansions under the Obama administration. The General Counsel’s office is implementing organizational changes that will centralize decision-making on cases. At the same time, the GC recently published some guidance for employers that was developed by the previous administration. Jay Sharma, Associate General Counsel for Tesla, tells us how employers like his are navigating this transition:

"What we've seen with the recent appointments that the Board has taken a shift back to being a bit more employer friendly and balancing a little bit more rights of employers. One of the significant decisions of the recent Board was the Boeing case, which dealt with workplace rules. And the General Counsel for the Board issued some guidance, which has been very helpful for employers in dividing workplace rules into three categories. So employers now can and should review all their workplace policies with labor counsel to see where the policies fall and hopefully make them fall, revise them to make them fall into the first category, which would be upheld."

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Cyberattacks have emerged as a critical threat to trade secret security. This Employment Law This Week Deep Dive episode focuses on cybersecurity and protecting your trade secrets from attacks that occur from inside your company. Attorneys Brian Spang and Brian Cesaratto of Epstein Becker Green discuss cybersecurity awareness, the Defend Trade Secrets Act and the evolution of cybersecurity, and the importance of implementing strong employee policies and planning ahead. Having a security incident response plan ready is a must for employers in this environment.

Read on for more about this episode:

1. Cybersecurity Awareness

British Airways, T-Mobile—these are just a few companies affected by hundreds of data breaches that have occurred this year. October is Cybersecurity Awareness Month, and every new breach is a reminder that cybersecurity cannot be taken for granted. And while the media often focuses on foreign attackers, data increasingly shows that the bigger threat comes from inside your company. We spoke to Brian Spang and Brian Cesaratto, from Epstein Becker Green, for more.

Brian Spang:

"Most data breaches are caused by insiders as opposed to outside attackers. By ‘insiders,’ I mean people who already have access to your system. That includes current employees, former employees who retain access rights to your system, and potentially third-party contractors or vendors who you have granted access to your system."

Brian Cesaratto:

"The data is increasingly showing that insider threat to trade secrets is a growing vulnerability. And that's both because insider threat presents two types of risk: risk of an intentional malicious insider causing damage or exfiltrating trade secrets or unintentional insider threat. So, what companies should do is they should consider the type of threats they face using available data and then determine what their existing controls are and how those can be improved."

For more, click here: ebglaw.com/eltw130-hla

2. The Evolution of Cybersecurity

These attacks have emerged as a critical threat to trade secret security. In 2016, Congress stepped in and tried to make it easier for companies to protect their trade secrets by taking their claims straight to federal courts with the Defend Trade Secrets Act.

Brian Spang provides more:

"The most significant change brought about by the Defend Trade Secrets Act is the establishment of federal subject-matter jurisdiction for trade secrets claims. Plaintiffs now may go directly to federal court without worrying about establishing diversity jurisdiction or relying on a different federal statute to establish subject-matter jurisdiction in federal court. Employers generally view federal court as a forum in which they can obtain relief more quickly and in which the cases move more quickly."

In the past, companies have sometimes relied on non-compete agreements to help prevent insider threats or to provide an avenue for relief. But as Brian Spang tells us, the current regulatory trend is running against these agreements.

"Regulation in this area is evolving toward restricting the use of non-compete agreements and in favoring the rights of individuals. And in certain jurisdictions, there have been recent decisions throwing out claims attempting to enforce over-broad non-compete agreements without giving the plaintiffs any opportunity to argue for modification or a narrowing of the restrictions."

3. Employee Policies and Planning Ahead

In this uncertain climate, ultimately the best offense is still a good defense, and that means stopping the insider threats before they materialize. The most important cybersecurity tools for employers are strong policies that shore up vulnerabilities and a firm plan for a potential incident or breach.

Brian Cesaratto tells us:

"The most important step that an employer can take to prepare for a security incident is to have in place a security incident response plan and to train employees and managers in the implementation of the plan. Planning ahead of time is important because that way, when the time comes and there is a crisis, the company's not reactive. It's not attempting to address the issue under stress where there's no plan in place."

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

On October 1, New York State released final guidance and updated materials in connection with the state’s newly enacted laws concerning sexual harassment measures that mandate enhanced policies as well as training for all employees. New York’s new sexual harassment laws will take effect on Tuesday, October 9, 2018, and mandate that employers must complete compliant training for all current employees no later than October 9, 2019. Employers also must provide such training for all new hires within a reasonable time of their hire dates. Meeting these deadlines to provide and complete compliant training should now be top of mind for all employers.

The New York guidance came the day after California Governor Jerry Brown signed four new #MeToo-inspired laws.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

This Employment Law This Week Monthly Rundown features a recap of the most important news from September 2018. The episode includes:

1. SCOTUS October Term Begins with Eight Justices

September was a busy month in employment law, the highlight of which was the contentious confirmation hearings on Brett Kavanaugh’s nomination to the U.S. Supreme Court. With the outcome of Kavanaugh’s confirmation still uncertain, the Supreme Court’s term begins today with a flashback to 2016: eight justices and a 4-4 ideological split with no clear majority. A tie decision leaves the lower-court ruling in place. The #MeToo movement has had an undeniable impact on the process, as the once nearly certain confirmation of Judge Kavanaugh was derailed by allegations of past sexual assaults and misconduct. It’s an important reminder for employers that allegations alone can create major problems for a company without the right processes in advance.

2. NLRB Action Signals Shifting Priorities

The National Labor Relations Board (“NLRB” or “Board”), with its Republican majority, has continued to undo the legacy of the Obama-era Board. The NLRB is taking steps to replace the Browning-Ferris joint-employment test with a more employer-friendly one. The agency will also likely overrule its decision in Purple Communications that established the right of employees to use employer email for organizing and other union activity. On joint employment, the Board published a proposed rule that would restore the "direct and immediate control" standard that was in place for 30 years, prior to Browning-Ferris.

For more, see here: https://bit.ly/2xVUbuB

In addition, last month, the NLRB General Counsel urged the Board to reverse Purple Communications, which could spur action soon. Legislation has been introduced in Congress to both expedite and undercut the NLRB positions so that the November midterms could have an impact on the outcomes. On top of that, over the objection of many in the business community, President Trump nominated Mark Pearce, a Democrat first nominated by President Obama, for another five-year term in one of the two seats reserved for the party not in the White House. All this illustrates just how difficult it is to turn the ship in a different direction when it comes to the NLRB, where the policy impact of presidential elections is sometimes not felt until years later.

3. Uber Drivers Head to Arbitration

Here is big news from the gig economy. The Ninth Circuit has decertified a gigantic class of Uber drivers. Several named plaintiffs sought to form a class of hundreds of thousands drivers to challenge the company’s classification of them as independent contractors. Reversing a lower court’s ruling, the three-judge panel found that the claims should be arbitrated individually by any driver who signed the company’s arbitration agreement, which included a class waiver. A majority of the drivers involved signed the agreement. The Ninth Circuit noted that the Supreme Court’s Epic Systems ruling found class waivers legal. The plaintiffs are considering an en banc appeal.

4. Sexual Harassment Laws Go Into Effect in New York

We’re just a few days away from New York State’s new sexual harassment laws taking effect. Starting October 9, all employers in the state will be required to institute a sexual harassment policy and begin annual anti-harassment training for all employees. We are awaiting final word from the state, but proposed guidance says that all current employees must complete compliant training by January 1, 2019. New hires must be trained within 30 days of hire. The law applies to all employers in the state, no matter the size. Next year, additional training requirements will be imposed in New York City.

For more, click here: https://bit.ly/2NP7Oql

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

1. Ninth Circuit Extends CA’s Non-Compete Ban Through No-Rehire Clause

Our top story: The U.S. Court of Appeals for the Ninth Circuit considers the outer limits of California’s ban on non-competes. California’s Business and Professions Code states that any contract that prevents someone from “engaging in a lawful profession, trade, or business” is void. The case in question dealt with a physician who refused to sign a settlement agreement with a no-rehire clause that barred him from working for specific employers that might have been connected to the medical group he worked for. The Ninth Circuit found that the provision would have substantially restrained the physician’s ability to practice, in violation of the law. Jim Goodman, from Epstein Becker Green, has more.

2. Massachusetts Takes On Non-Competes

In Massachusetts, Governor Charlie Baker is expected to sign a bill that would require an employer in the Commonwealth with non-compete agreements to continue paying workers after they’ve left the company. This type of “garden leave” policy would extend through the entire period that former employees are banned from working for competitors. Intended to discourage non-compete agreements, the bill also limits the agreements to no more than one year and prohibits them outright for many employees, including low-wage workers, minors, and those who have been laid off.

3. California Tackles Wage and Hour Issues

The California Supreme Court has agreed to advise the Ninth Circuit on the application of state wage and hour laws. Among other issues, the court will evaluate whether the state’s wage statement law should apply to employees who work in California on an irregular basis and are employed by out-of-state employers. Meanwhile, a state appeals court addressed the requirement that an employee who quits without notice must receive a final paycheck within 72 hours. The court found that the 72-hour period did not begin to run when an office manager quit through an email sent after-hours on a Friday.

For more, click here: ebglaw.com/eltw127-wh

4. NLRB Streamlines Case Handling

The General Counsel’s Office of the National Labor Relations Board (NLRB) has announced a series of changes in the agency’s case-handling practices that it says will streamline processes at the NLRB’s Regional Offices and make better use of limited resources. In a six-page memo, Head of Operations-Management Beth Tursell describes a new, simpler, and faster process for Regional Offices to follow when they submit complex and novel legal issues to the Division of Advice in Washington, DC. Supervisors and investigators, not just Regional Directors, will be able to make decisions on whether to dismiss unfair labor practice charges or issue complaints. Post-hearing decision writing in representation cases will be more centralized, with regional and district teams drafting the decisions. These changes were announced July 30 and were effective immediately. The memo referred to these changes as “Part One,” suggesting more to come.

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.