Employment Law This Week®: Executive Incentive Pay Rule, Race Discrimination, Pokémon Go, Commercial Non-Competes

Episode 36: Week of August 1, 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) Chamber: Executive Incentive Pay Rule Could Stunt Growth

Our top story:  The U.S. Chamber of Commerce claims that the new executive incentive pay rule could stunt economic growth. The proposed rule lays out a tiering system for regulating bonus pay for bank executives and other employees in the financial sector. The Chamber’s 26-page letter argues that the rule could deter the best minds from entering the financial sector and discourage economic growth and job creation. The FDIC has said that the letter will be taken into account during the review process. Gretchen Harders, from Epstein Becker Green, has more. For more information on incentive pay rule, click here. Bonus: Watch the extended interview here.

(2) Eighth Circuit Rules for Employer in Race Discrimination Suit

The U.S. Court of Appeals for the Eighth Circuit upholds an employer’s win in a race discrimination suit.  An African-American employee of medical technology company Siemens was terminated as part of a reduction in force. The employee alleged that his selection was race-based, and he provided evidence of racial discrimination by his direct supervisor. The plaintiff claimed that poor evaluations by that supervisor “duped” the service director into firing him. The court found that the supervisor who wrote the evaluations did not know about the workforce reductions and, therefore, could not have intentionally triggered a discriminatory termination.

(3) Pokémon Go Sparks Privacy Concerns

Pokémon Go creates privacy concerns for employers. The first mainstream augmented reality game is sweeping the nation, and the game never stops, even during work hours. Despite a recent update to the game that reduces its access to players’ Google accounts, Pokémon Go’s data collection practices are under fire from privacy advocates. This week, the Electronic Privacy Information Center joined the fray, calling for the Federal Trade Commission to investigate security risks associated with the game. In light of the popularity of the game, employers should consider adding more detail to their policies about how and where business mobile devices can be used. For more on the privacy concerns with Pokémon Go, click here.

(4) Michigan’s High Court Changes Standard for Commercial Non-Competes

The “rule of reason” standard applies to commercial non-competes in Michigan, the state’s highest court says. Innovation Ventures contracted with a manufacturing plant to produce and package the “5-Hour ENERGY” drink. After the relationship was terminated, the plant began to produce competing energy drinks. Innovation Ventures argued that this action violated a non-compete clause in its termination agreement. Lower courts found that the clause was unenforceable under a provision in the Michigan Antitrust Reform Act (MARA). On appeal, the Michigan Supreme Court remanded the case, ruling that the MARA provision applies only to non-competes between employers and employees and that the federal “rule of reason” standard should be applied to commercial non-competes in Michigan.

(5) Tip of the Week

Ariel Merkrebs-Finkelstein, Director of Human Resources at HelloFresh, is here with some advice on best practices for developing company culture.

"It's important for you to establish a strong company culture within your organization, because it will help you attract and retain top talent. One thing you can do is call each other a ‘family’ or a ‘team,’ rather than coworkers or colleagues. This will help you break down the barriers and facilitate conversations more easily. . . . Create opportunities for interacting with one another outside of the formal landscape of the office. This might include something like exercise classes, interactive games like ‘Escape the Room,’ or even just a picnic in a nearby park. . . . I also recommend that you recognize your employees. It's a really great way to make them feel valued, and it's free. So get creative."

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