Employment Law This Week®: Criminal Prosecution of Anti-Poaching Agreements, EEOC Publishes 2017 Data, Organizational Changes at NLRB, NYC’s “Cooperative Dialogue” Requirements

Episode 103: Week of February 5, 2018


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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) Trump Continues Obama Antitrust Guidance for HR Professionals

Our top story: There’s no relief from the Trump administration on anti-poaching agreements. Certain 2016 guidance from the Department of Justice (DOJ) and Federal Trade Commission put employers on notice that agreements between companies to not poach employees, or to limit the compensation paid to some employees, could violate antitrust laws. There had been some speculation that President Trump’s DOJ would back away from this policy. However, recent comments by the Assistant Attorney General for the Antitrust Division indicated that the new administration will support the policy and promised several announcements in the coming months. Aime Dempsey, from Epstein Becker Green, has more:

“Now that we know that this administration is going to continue the policy, employers have a good opportunity to make sure they have procedures in place to prevent a violation. They should make sure that their hiring decisions, their wage and benefits decisions, are made only based on what that employer needs and what that employer is able to do. They should make sure that they are training their HR professionals as to the existence of the policy and as to what it means. They should document what they're doing and how they’re making hiring decisions, so that if there ever is an issue where there's an inquiry, they'll be able to show that their hiring decisions are based on their own policies.”

Watch the extended interview here.  For more, click here: http://bit.ly/2EBQLzO

(2) EEOC Publishes 2017 Data

Retaliation tops discrimination charges filed in 2017. The Equal Employment Opportunity Commission (EEOC) has published its annual enforcement and litigation data. During fiscal year 2017, 84,254 workplace discrimination charges were filed with the agency nationwide. Retaliation charges were the most common, accounting for 48.8 percent of all charges filed. The EEOC is also touting its progress in eliminating backlogs, reporting a 16.2 percent reduction in outstanding workload, to the lowest level in 10 years.

(3) Organizational Changes at the NLRB

General Counsel Peter Robb could be signaling a shift at the National Labor Relations Board (NLRB). Robb has reportedly suggested structural changes that could establish a new layer of management between the General Counsel and the field. These reports come as the NLRB seeks to adjust to cuts to its budget and a decline in case filings. If implemented, the changes could remove authority from the Regional Directors and shift more decision-making to the General Counsel. Sources report that some changes are likely before the new budget year next October.

For more, click here: http://bit.ly/2GIsHMG

(4) NYC Amends Human Rights Law

Beginning October 15, New York City will require employers to engage in a "cooperative dialogue" with any employee or applicant who may be entitled to a reasonable accommodation. A person might seek an accommodation for religious needs, pregnancy, or a disability, among other reasons. The amendment to the city’s Human Rights Law requires employers to exchange information with the requesting individual and produce a written decision.

For more, click here: http://bit.ly/2DXrROl

(5) Tip of the Week

This week, Lenora Billings-Harris, Diversity Strategist for Ubuntu Global, is here with some tips for addressing micro-aggression in the workplace:

“Very often, when people leave an organization, if asked, they say they left the organization to take another job that pays them more. More often than not, that's not the real reason; it's just an easy answer. The real reason they leave is, either they feel disconnected to the organization or disconnected to their supervisor or their manager. The reason they become disconnected so often is because of unconscious messages and behaviors that tell them they don't belong. We call those ‘micro-messages’ and ‘micro-behaviors.’ Now, the good news is, there is a solution, if you're willing to practice. There's a technique that I call ‘STOP.’ The ‘S’ stands for ‘state’ the behavior, the ‘T’ stands for ‘tell’ the person how you feel, the ‘O’ stands for ‘options,’ and the ‘P’ stands for ‘positive’ results. It only takes about 45 seconds when you practice it and when you do it well. You need to practice it, though, because this is an emotional kind of feedback. So, practice it and then deliver.”

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