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Many thanks to our colleague in London, Julia Wilson, for co-presenting.

An influx of high profile whistleblowing cases have made headlines in recent years, and claims (and awards) are on the rise. At the same time, more defined and greater protections for whistleblowers are coming into play in the US, UK and

On March 15, 2022, the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new directive putting federal contractors on notice that it will more closely scrutinize their pay equity audits. Making headlines, the directive states that federal contractors are expected to hand over information about their internal pay analyses when being audited by the office, including documents that are protected by the attorney-client privilege and/or work product doctrine.

Background

Executive Order 11246 requires affirmative action and prohibits federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others.

As part of their affirmative action obligations, supply and service contractors are required to perform an in-depth analysis of their total employment practices to determine whether and where impediments to equal employment opportunity exist. This includes conducting an in-depth analysis of their compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities, as provided in 41 CFR 60-2.17(b)(3).3.

To comply with the regulations, most companies doing business with the federal government  conduct an evaluation of their pay practices for potential gender, race, or ethnicity-based disparities.  Oftentimes, these analyses are performed with the help of outside counsel who provides legal advice regarding, among other things, compliance with the requirements enforced by OFCCP. And, until now, these pay audits have been considered privileged and confidential.

Impact of the new directive

During a compliance evaluation, a supply and service contractor is required to provide OFCCP with compensation data. In addition to requesting additional compensation data, interviews, and employment records, the OFCCP is now making explicit that it may also seek the contractor’s evaluation under § 60-2.17(b)(3), which the OFCCP calls the “pay equity audit.”

Continue Reading OFCCP Emboldened To Demand Contractors’ Internal Pay Analyses

On March 3, President Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” H.R. 4445, into law. The landmark legislation allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. To understand the implications of the new law, click here.

President Biden is expected to sign into law landmark #MeToo legislation, which allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” amends the Federal Arbitration Act (FAA), by narrowing its scope and applicability. The bill’s passage had bipartisan support in both the House and the Senate.

Historically, some employers have implemented arbitration programs that require both the employer and its employees to arbitrate most or all types of employment claims, including claims alleging sexual harassment or sexual assault. Largely in response to the #MeToo movement, which began in late 2017, some states passed laws designed to prohibit or restrict employers from requiring employees to arbitrate sexual harassment or sexual assault claims. For example, in New York, employers are prohibited from requiring the arbitration of sexual harassment claims except where inconsistent with federal law. New York’s prohibition on mandatory arbitration in relation to sexual harassment claims went into effect on July 11, 2018, and it has applied to contracts entered into on or after that date. New Jersey and California have enacted similar laws. New Jersey’s law prohibits any provision of an arbitration agreement that waives a substantive or procedural right or remedy relating to employment discrimination, harassment, and retaliation claims. This law applies to all contracts and agreements entered into, renewed, modified, or amended on or after March 18, 2019. Further, on October 10, 2019, California enacted a law, which prohibits employers from requiring employees to sign new mandatory arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act (FEHA) or California Labor Code.  California’s law applies only to agreements dated January 1, 2020 or after. However, courts have found these statutes to be pre-empted by the FAA.

On February 7, 2022, the U.S. House of Representatives overwhelmingly passed H.R. 4445, 335 to 97. Shortly thereafter, on February 10, 2022, the bill passed the Senate in an unrecorded voice vote.

Continue Reading Landmark #MeToo Legislation Allows Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration

Special thanks to Jessica Nall, Lothar Determann and Teresa Michaud

If your last name starts with A-G, you are probably well aware that your CLE compliance deadline is right around the corner – February 1, 2022. In addition to the general credit, the state of California requires all attorneys to complete:

  • At least

Special thanks to Melissa Allchin and Lothar Determann.

Our California Employer Update webinar is designed to ensure that California in-house counsel are up to speed on the top employment law developments of 2021 and are prepared for what’s on the horizon in 2022.

With our “quick hits” format, we provide a content-rich presentation complete

Special thanks to guest contributor Aleesha Fowler.

Baker McKenzie’s Labor and Employment and Compliance and Investigations lawyers discuss the key considerations organizations encounter when faced with high profile sexual harassment and misconduct allegations and subsequent investigations involving powerful authoritative figures, executives and celebrities.

Click here to watch the video.

 

On May 5, 2021, the US Department of Labor (DOL) announced the withdrawal of the previous administration’s independent contractor rule, effective May 6, 2021. The DOL has not proposed any regulatory guidance to replace the rule, leaving employers with no clear guidance on worker classification under the FLSA.

The withdrawal is no surprise. The DOL

On March 12, 2021, Governor Andrew M. Cuomo signed Senate Bill S2588, which grants time off for public and private employees to receive a COVID-19 vaccination. The newly enacted legislation is effective immediately, and expires on December 22, 2022.

New Paid Leave Entitlement

Employees receiving the COVID-19 vaccination will be provided with a paid leave of absence from their employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless an employee is permitted to receive a greater number of hours pursuant to a collective bargaining agreement or as otherwise authorized by an employer. Time is to be paid at the employee’s regular rate of pay for each COVID-19 vaccine injection.

Continue Reading New York Enacts COVID-19 Vaccine Paid Leave Law

Government agencies are increasingly setting their sights on larger targets, ramping up enforcement efforts to root out systemic discrimination. This has important ramifications for employers who may suddenly find themselves defending a claim that, for all intents and purposes, feels like a class action, even though it started as an individual agency charge. With advancements in technology, large data sets on workforces are more common than ever, and government agencies are taking advantage of this and will not hesitate to request data on classes of individuals to search for trends indicating potential discrimination.

EEOC Intensifies Campaign against Systemic Discrimination

In her first public speech since being named as Chair of the EEOC, Charlotte Burrows pledged that the federal government’s workplace civil rights agency will emphasize enforcement of laws to combat systemic discrimination. This commitment to addressing systemic discrimination is consistent with President Biden’s plans to combat racism. (In January, Biden signed an executive order creating a government-wide “racial equity review” and underscoring enforcement of anti-discrimination laws. Read more here.)

Continue Reading Government Agencies Eye Larger Targets: How Employers Can Navigate the Increase in Systemic Litigation