Technology Employment Law

Technology Employment Law

Legal Insight for Technology, Media, and Telecommunications Employers

Category Archives: Employment Law

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Employers: How to Prepare for “A Day Without” Actions

A new post on the Management Memo blog will be of interest to many of our readers in the tech industry: “‘A Day Without’ Actions – How Can Employers Prepare?” by our colleagues Steven M. Swirsky and Laura C. Monaco of Epstein Becker Green.

Following is an excerpt:

[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by … Continue Reading

Shifting Obligations for Employers with the Advancement of AI-driven Automation and the Rise of Independent Workers

As I continue to follow developments regarding the future of work, I recently attended an event co-sponsored by Cornell/ILR’s Institute for Workplace Studies in NYC and the McKinsey Global Institute (MGI) addressing MGI’s report last Fall entitled Independent Work: Choice, Necessity and the Gig Economy. The report examines the increasing numbers of self-employed, freelance and temporary workers in the U.S. and Europe which are currently estimated to comprise 30 percent of the working-age population and rising.  The report notes that many workers have chosen this autonomous path as their primary means of income, while others follow it to supplement … Continue Reading

OFCCP Sues Tech Giant Oracle Alleging Discrimination in Compensation and Hiring Practices and Failure to Produce Requested Records and Data

The United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) on January 17, 2017, just days before the inauguration of President Donald Trump, filed a lawsuit against Oracle America, Inc. (“Oracle”), alleging discrimination in its compensation and hiring practices, and its refusal to produce requested records and data. See Complaint. The lawsuit, filed with the Office of Administrative Law Judges, stems from a compliance review initiated by the OFCCP on September 24, 2014 at Oracle’s Redwood Shores headquarters in California, housing 7,000 employees.

As a federal government contractor, subject to Executive Order 11246, the Rehabilitation Act … Continue Reading

Five Issues Technology Employers Should Monitor Under the Trump Administration

A New Year and a New Administration: Five Employment, Labor & Workforce Management Issues That Employers Should MonitorIn the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:

Read the full Take 5 online or download the PDF. Also, keep track of … Continue Reading

Governor Andrew D. Cuomo Introduces Employee Protective Mandates in New York State

Our colleagues Judah L. Rosenblatt, Jeffrey H. Ruzal, and Susan Gross Sholinsky, at Epstein Becker Green, have a post on the Hospitality Labor and Employment Law Blog that will be of interest to many of our readers in the technology industry: “Where Federal Expectations Are Low Governor Cuomo Introduces Employee Protective Mandates in New York.”

Following is an excerpt:

Earlier this week New York Governor Andrew D. Cuomo (D) signed two executive orders and announced a series of legislative proposals specifically aimed at eliminating the wage gap in gender, among other workers and strengthening equal … Continue Reading

Are You Prepared to Ban the Box? New Ordinances Prohibit Los Angeles Employers from Asking About Criminal Convictions Before Making Conditional Job Offers

On December 9, 2016, Los Angeles Mayor Eric Garcetti signed ordinances no. 184652 and 184653, collectively referred to as the “Fair Chance Initiative.” These ordinances prohibit employers and City contractors (collectively “Employers”), respectively, from inquiring about job seekers’ criminal convictions until after a conditional offer of employment has been made. Both ordinances will go into effect on January 22, 2017 and will impact all employers in the City of Los Angeles and for every position which requires an employee to work at least an average of two hours per week within the City of Los Angeles and all City contractors … Continue Reading

Top Issues of 2016 – Featured in Employment Law This Week

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

  • Impact of the Defend Trade Secrets Act
  • States Called to Ban Non-Compete Agreements
  • Paid Sick Leave Laws Expand
  • Transgender Employment Law
  • Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
  • NLRB Addresses Joint Employment
  • NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

Continue Reading

Wage Fixing and No Poaching Agreements: New Antitrust Guidance Threatens Criminal Prosecution

Our colleague Daniel J. Green, an Associate at Epstein Becker Green, has a post on the Trade Secrets & Noncompete Blog that will be of interest to many of our readers in the technology industry: “Aggressive New Antitrust Guidance for Human Resources Professionals Threatens Criminal Prosecution for Certain Unlawful Wage Fixing and No Poaching Agreements”

Following up on a string of civil enforcement actions and employee antitrust suits, regarding no-poaching agreements in the technology industry, on October 20, 2016 the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) issued Antitrust Guidance for Human Resources Professionals (the “Guidance”). … Continue Reading

Employers Under the Microscope: Is Change on the Horizon? – Attend Our Annual Briefing (NYC, Oct. 18)

Employers Under the Microscope: Is Change on the Horizon?

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Latest Developments from the NLRB
  • Attracting and Retaining a Diverse Workforce
  • ADA Website Compliance
  • Trade Secrets and Non-Competes
  • Managing and Administering Leave Policies
  • New Overtime Rules
  • Workplace Violence and Active-Shooter Situations
  • Recordings in the Workplace
  • Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will … Continue Reading

Seventh Circuit: Title VII Does Not Cover Sexual Orientation Bias

Our colleague Linda B. Celauro, Senior Counsel at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the technology industry: “Seventh Circuit Panel Finds That Title VII Does Not Cover Sexual Orientation Bias.

Following is an excerpt:

Bound by precedent, on July 28, 2016, a panel of the U.S. Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act of 1964. The panel thereby affirmed the decision of … Continue Reading

Maryland Expands State Equal Pay Act and Broadens Employees’ Right to Discuss Wages

Maryland has now joined New York and several other states that have recently passed legislation expanding state equal pay laws and/or broadening the right of employees to discuss their wages with each other (often called “wage transparency”). The Equal Pay for Equal Work Act of 2016 (“Act”), signed by Governor Hogan on May 19, 2016 and set to take effect October 1, 2016, amends Maryland’s existing Equal Pay law (Md. Code, Labor and Employment, §3-301, et seq.), which applies to employers of any size, in several significant aspects.

First, as to the equal pay provisions, the Act:

  • Extends the
Continue Reading

OSHA’s Electronic Recordkeeping Rule: New Pitfalls for Employers

Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the technology industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers from retaliating against employees for reporting injuries and illnesses at work.  … Continue Reading

What Monitoring Technology Allows, the Law May Prohibit

Gregg Settembrino

Gregg Settembrino

Recently I attended the American Bar Association’s (“ABA”) 2016 mid-year National Symposium on Technology in Labor and Employment Law (“Conference”) in Washington, D.C.  The Conference highlighted a number of technology related issues that should be of interest to employers, such as the use artificial intelligence in the workplace, cybersecurity, and new trends in the National Labor Relations Board’s technology-based decisions and rulemaking.

One segment of the Conference that I found particularly interesting was “Technology in the Workplace: What’s Out There, What’s Coming, and Why You (Really) Need to Care,” presented by Kate Bischoff and Heather Bussing. It was … Continue Reading

DOL Releases New Poster and Employer’s Guide to FMLA

Technology employers should note that the Department of Labor’s Wage and Hour Division (“DOL”) has just released a new Family Medical Leave Act (“FMLA”) poster and The Employer’s Guide to The Family and Medical Leave Act (“Guide”).

New FMLA Poster

The FMLA requires covered employers to display a copy of the General FMLA Notice prominently in a conspicuous place. The new poster is more reader-friendly and better organized than the previous one. The font is larger and the poster contains a QR code that will connect the reader directly to the DOL homepage. According to the DOL, however, the February … Continue Reading

Weak HR Departments May Leave Startups Vulnerable to Lawsuits

We recently had the pleasure of being interviewed by Julianne Tveten of Motherboard, for her article “HR Comes Last at Startups, and Women Pay the Price.”

The article raises some important issues for startup founders and investors.  In particular, as we discuss, a delay in establishing HR policies may inadvertently draw claims of harassment in the workplace.

Following is an excerpt of one of our passages:

“Usually, the wakeup call comes by way of litigation, investigation, or when the people strategy is not completely sound and investors or potential acquirers look at the operating model and it impacts their … Continue Reading

Paid Parental Leave in San Francisco: Employer Alert

Our colleagues Steven R. Blackburn and Elizabeth J. Boca, attorneys at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “San Francisco Paid Parental Leave.”

Following is an excerpt:

Under the proposed San Francisco ordinance, for up to six weeks employers must bridge the gap between the amount the employee receives in PFL and one-hundred percent of the employee’s gross weekly wages (referred to as “Supplemental Compensation”) for parental bonding purposes.  In other words, the employer must pay … Continue Reading

Non-Compete Claims in the Age of Remote Employees: Determining Jurisdiction

Our colleagues Anthony Laura and Matthew Aibel, attorneys at Epstein Becker Green, have a post on the Trade Secrets & Noncompete Blog that will be of interest to many of our readers in the technology industry: “Jurisdiction to Pursue Non-Compete Claims in the Age of Remote Employees.”

Following is an excerpt:

With remote access technology becoming standard across industries, companies readily engage a multi-state workforce, with many employees residing outside of the employer’s home state.  While an expanded access to talent may be beneficial, one drawback is the ability to enforce restrictive covenants with out of state … Continue Reading

“Get the Facts” – EEOC Publishes New Fact Sheet for Start-Ups and Small Businesses

Nancy L. Gunzenhauser

Nancy L. Gunzenhauser

On March 3, 2016, the EEOC issued a one-page fact sheet aimed at assisting start-ups and small businesses understand their responsibilities under the various federal employment laws. The fact sheet, which is available in over 30 languages, reminds employers that:

  • employment decisions cannot be made on the basis of protected categories
  • employers should establish policies that do not disparately impact employees on the basis of protected categories
  • men and women must be provided equal pay
  • employers should prevent harassment, but if a complaint is raised, employers should promptly address claims of harassment or discrimination
  • employers should
Continue Reading

Philadelphia Employers: New Ban-the-Box Poster Is Required

Our colleague Nancy L. Gunzenhauser, an Associate at Epstein Becker Green, has a post on the Retail Labor and Employment Blog that will be of interest to many of our readers in the technology industry: “Reminder: All Philadelphia Employers Must Post New Ban-the-Box Poster.”

Following is an excerpt:

One of the requirements of the amended Philadelphia ban-the-box law has gone into effect. As of March 14, 2016, Philadelphia employers are required to post a new poster provided by the Philadelphia Commission on Human Relations in a conspicuous place on both the employer’s website and on premises, where … Continue Reading

Promoting Diversity Without Reverse Discrimination

Technology media and telecommunications (“TMT”) industry employers should begin taking steps to mitigate a new litigation risk—reverse discrimination claims. This past year there were a number of news stories regarding the lack of diversity in the technology industry (see, for example, articles in Inc., The Cut, Fusion, The New York Times, and Wired). Numerous advocacy groups pressured TMT employers to focus on increasing workplace diversity in order to eliminate this disparity. As TMT employers continue to defend themselves against these allegations, the recently filed Complaint in Anderson v. Yahoo!, 5:16-cv-00527 (N.D. Cal. 2016), alleges that Yahoo!’s robust … Continue Reading

EEOC’s New Program to Disclose Employer Position Statements and Supporting Documents

Our colleague Laura A. Stutz has a Retail Employment Law Blog post that will be of interest to many of our technology industry readers: “EEOC Implements Nationwide Program to Disclose Employer Position Statements and Supporting Documents.”

Following is an excerpt:

The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer position statements to Charging Parties upon request. The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.

Before releasing the supporting documents … Continue Reading

Getting Control of Hot-Button Labor and Employment Issues in the Digital Age

DSCN0843Employers in the technology, media and telecommunications industry are faced with many workplace management and legal compliance challenges.  Among these are trends in the shared economy and rise of the contingent workforce, data privacy and security, and use of social media in connection with recruitment, employee monitoring and termination.  At the recent  Epstein Becker Green 34th Annual Workforce Management Briefing held at the New York Hilton, members of the firm’s TMT Group including the authors of this post, along with in-house counsel speakers Rebecca Clar of AOL and Blake Reese of Google provided a panel workshop on these hot-button … Continue Reading

The Misclassified Worker and Employee Benefit Plan Considerations

If an employer is found to have misclassified an employee as an independent contractor or other contingent worker, then liability can be substantial under applicable federal and state labor, employment, tax and withholding laws including laws regarding payment of wages, overtime and unemployment compensation, workers’ compensation, discrimination and rights of workers and unions.   It is equally important to understand that compliance of employee benefit plans with requirements under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code of 1986, (the “Code”) can also be at risk.  Employers must be mindful of the effects misclassification of … Continue Reading

Sixth Circuit Says Complaints to Harassing Supervisor Constitute Protected Activity

Employers in the technology industry should take note of last week’s decision by the U.S. Court of Appeals for the Sixth Circuit in EEOC v. New Breed Logistics (PDF).  The court declined to reconsider a panel holding that, in the context of a retaliation claim, “a demand that a supervisor cease his/her harassing conduct constitutes protected activity under Title VII.”

Three former employees of New Breed Logistics, a supply-chain logistics company, asserted that they had engaged in protected activity by telling their supervisor to stop making advances and sexual comments.  The district court agreed, holding that protected conduct “can be … Continue Reading

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