News

Hoping to encourage victims and employers to report and share information regarding about sex harassment without fear of being sued for slander, the new law, effective January 1, 2019, protects as privileged some employee and employer reports about sex harassment.   

Sex harassment accusations can destroy a person’s reputation and slander and/or defamation lawsuits are often the only way an accused can defend against such allegations.  The threat of such lawsuits have deterred victims, witnesses, and former employers from sharing information about harassment and harassers.  

Hawaii Bans Salary Inquiries:  Governor Ige signs bill into law prohibiting employers from asking applicants about their prior compensation history.

Starting Jan. 1, 2019, employers with any  workers in the state may not ask anyone about about an applicant’s “current or prior wage, benefits, or other compensation.” 

The bill also prohibits: 1) searching publicly available records or reports to attempt figuring out an applicant's salary history, and 2) relying upon an applicant's salary history to determine compensation, unless the applicant voluntarily discloses it without prompting. 

The Program is really a free mediation service that assigns experience law judges to help parties resolve unfair labor practice charges and other disputes.  

Now the NLRB is actively working to get parties to utilize the program.  In addition to incorporating it's ADR program into the Board's updated rules and regulations in early 2017, the NLRB is now launching a pilot program to encourage and welcome requests for ADR services.  

The 5-4 decision overturns a 1977 ruling allowing unions to charge fees for contract negotiation services to all employees working under that contract, often called “fair share” or “agency” fees.

While details about how the ruling applies to current contracts are still unclear, the dissent warned that the majority's ruling will disrupt “thousands of ongoing contracts involving millions of employees.”

Last year the NLRB's Boeing case set up 3 new "categories" for employee handbook policies:

• Category 1 (Green): Lawful rules that do not unduly restrict NLRA rights
• Category 2 (Yellow): Rules needing case-by-case analysis; Board weighs harm to employee rights against employer considerations; 
• Category 3 (Red): Unlawful rules that unduly restrict NLRA rights

This recent memo from the NLRB's General Counsel categorizes some common workplace rules to illustrate.  

Pricey Personnel Policy:  Casino pays $3.5 million to settle suit over return to work policy that 1) required 100 percent healing, 2) didn't allow for engagement in an interactive process, and 3) prevented employees with protected disabilities from receiving reasonable accommodations.

The casino also allegedly violated the ADA by forcing employees to quit because they were regarded as disabled, had a record of disability, and/or were associated with someone with a disability. 

Hawaiian Tour Company President Forced to Step Down, Accused of Sexually Harassing Male Employees for More Than a Decade:

A Hawaii tour/entertainment company settled a sex harassment suit filed by the EEOC, alleging the president sexually harassed male employees for years, many who either quit due to the harassment or were retaliated against for reporting it.  

The parties signed a three-year consent decree providing: $570,000 in damages to certain male employees and requiring that the president have no further involvement in operating or controlling any of the three related companies.   Moreover, an external EEO consultant must ensure the compliance with Title VII and anti-retaliation policies.  

Staffing Company Discriminates Like its 1959: The EEOC has filed suit against Staffing Solutions of WNY, Inc. in Buffalo, NY, for acting like the Civil Rights Act of 1964 had never been passed.  Rarely do you find so many cautionary tales in one case.  The long list of discriminatory and retaliatory acts alleged includes: 

• Refusing to hire highly qualified black applicants 
• Placed blacks in the lowest paying, least desirable jobs 

For the past six years, the NLRB has held that maintaining individual arbitration agreements with class-action waivers violated the NLRA.  

During that time, the NLRB repeatedly invalidated many employers' arbitration agreements and policies.  Many more employers have altered their arbitration agreements in order to avoid triggering claims or charges under the NLRA.

CFO sued former employer for $8,100 in unpaid wages and claimed fraud and breach of contract, naming the CEO individually.  The Colorado court recognized officers and directors cannot be held personally liable for corporate debts, but found an exception by “piercing the corporate veil.” 

The Court found the CFO should be able to show: 1) the corporation was/is the CEO's “alter ego"; 2) the CEO used the corporation to perpetrate fraud; and 3) equity required the court to disregard the corporate form and hold the CEO personally liable.