Employment Law This Week®: Sunlight in Workplace Harassment Act, Joint-Employer Test, Guidance on MA Pay Equity Law, DOL’s PAID Pilot Program

Episode 108: Week of March 12, 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) Congress Introduces Sunlight in Workplace Harassment Act

Our top story: Federal #MeToo legislation aimed at public companies is introduced in Congress. The Sunlight in Workplace Harassment Act, introduced in both the House and the Senate in February, would require public companies to report information related to harassment and discrimination settlements and complaints in their SEC filings. Reports would have to include the number and dollar amount of settlements, the average length of time that it takes to resolve complaints, and the total number of harassment and discrimination complaints. In addition, the bill would require information about an employer’s efforts to prevent future acts of unlawful harassment, discrimination, or sexual abuse. Beth McManus, from Epstein Becker Green, has more:

The interesting thing about this bill, in terms of its broad and sweeping scope, is the fact that it applies not just to sexual harassment, but to claims of discrimination based on a broad variety of categories, like sex, age, race, national origin, military service status, genetic information. So, it’s a huge range. Change is on the horizon, with respect to sexual harassment settlements and disclosure in general. In fact, the recently passed Republican-sponsored Tax Cuts and Jobs Act prevents employers from taking a tax deduction if they have a sexual harassment or sexual abuse allegation settlement that is subject to a nondisclosure agreement. I think we’ll continue to see a movement towards preventing non-disclosure agreements in those types of cases moving forward.”

Watch the extended interview here.

(2) NLRB Asks D.C. Circuit to Review Browning-Ferris

The National Labor Relations Board (“NLRB” or “Board”) has asked the U.S. Court of Appeals for the District of Columbia Circuit to reopen its review of the Board’s Browning-Ferris joint-employer test. As we reported last week, the Board has vacated its December 2017 decision in Hy-Brand, which had overturned the Browning-Ferris “indirect control” standard and re-adopted a “direct control” test for joint employment. If the court revisits the case, it can uphold or reject the test set in Browning-Ferris, or it can send that case back to the NLRB, which could again replace the Browning-Ferris standard with a standard like the one in Hy-Brand.

(3) Guidance Published on MA Pay Equity Law

There is clarity for Massachusetts employers. The Massachusetts Attorney General recently published guidance on the state’s upcoming pay equity law. The long-awaited guidance answers frequently asked questions about the law; defines important terms, like “covered employers”; and details permissible variations in pay, among other topics. The Attorney General’s office will partner with business associations on webinars and events in the coming weeks to give employers more information on the law, which will go into effect on July 1, 2018.

(4) DOL Launches PAID Pilot Program

The U.S. Department of Labor (“DOL”) launched a new program to get employees P-A-I-D. Under the Wage and Hour Division’s Payroll Audit Independent Determination, or “PAID,” program, employers that choose to participate will self-audit their overtime and minimum wage practices. The employers submit their audits and, if the Wage and Hour Division agrees, pay employees any wages owed to them. Those that self-report can avoid heavy fines and work with the Wage and Hour Division to correct any mistakes. The DOL will implement the pilot program nationwide for about six months before evaluating it.

(5) Tip of the Week

Ann Rhoades, President of Peopleink, has some advice on best practices for building a values-based organization:

“Creating a values-based organization begins with defining who you want to be, by blueprinting the values. And along with that, you also blueprint the behaviors behind each of the values. Secondly, you also then start hiring people who have not only the competencies you’re looking for, but the values. Next, you have to think about ... does every employee brand your organization around the values the way you want them to? In other words, are they mirroring what you've defined as your brand? Because your employees are your brand. And last, but not least, great organizations that are values-based have a continuous discipline model that is all about everyone being engaged in achieving their goals.”

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