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February 2019 Archives

Sarbanes-Oxley whistleblower retaliation decision

The U.S. Court of the Appeals for the Ninth Circuit recently ruled on the employer's appeal of an $11 million verdict in a whistleblower retaliation case, Wadler v. Bio-Rad Laboratories, Inc. (9th Cir. Feb. 26, 2019). Mr. Wadler was an in-house attorney for a medical supplies company who investigated another employee's reports of potential bribery and other illegal practices in several foreign countries. His investigation confirmed some of these reports, and he also found additional problems, including unauthorized contracts that did not include compliance provisions under the Foreign Corrupt Practices Act (which prohibits bribery to get business in foreign countries). He reported his findings to the Board's Audit Committee in February 2013, which then hired an outside law firm to do an investigation. In June 2013, the law firm issued a report that purported to exonerate Bio-Rad, and Wadler was fired only three days later. Nonetheless, Bio-Rad paid the U.S. government $55 million to resolve its investigation of FCPA (bribery) issues in three of the four countries covered by Wadler's report.

What are my FLSA hours?

Federal labor law may seem complicated to you at first glance. However, when you have the right information about the specifics of your case, you may find that the rules become much clearer. While there are certain exceptions, the general rules on hours worked would probably apply to you if you were an employee in Washington, DC.

Sexual harassment based on false rumors about female employees

The U.S. Court of Appeals for the Fourth Circuit, in a case from Maryland, recently held that a female employee who was falsely accused in the workplace of having slept her way to a promotion, could bring hostile work environment and retaliatory termination claims against her former employer. Here, these false rumors persisted in the workplace, even being spread by a manager. The opinion discusses at length why such false rumors are discriminatory, because they are invariably about women in the workplace and reflect stereotypes about women.

Court Rules in Favor of Firm's Client on Post-Trial Motion in Tenure Discrimination Case

Here's an update on the October 2018 jury verdict in our firm's tenure case against American University. On February 5, 2019, Judge Rankin denied defendant's post-trial motion . AU made three primary arguments, each of which the court rejected. Some excerpts follow (emphasis added) -

Alan Kabat presented at CLE conference on independent contractor issues

Alan Kabat recently organized and moderated a CLE panel at the annual conference of the Metropolitan Washington Employment Lawyers Association on wage and hour laws, which included a discussion on misclassification of employees as independent contractors in the new "gig" economy. Increasingly, employers are attempting to treat their workers as independent contractors instead of as employees, thereby removing the protection of nearly all the employment discrimination laws from their workers. Further, the tax code was recently amended to favor employers' characterization of workers as independent contractors. His report discussed the often unforeseen consequences of misclassification of workers. Alan also described the ongoing litigation involving Uber drivers and recent legislative attempts to address the misclassification of workers, to ensure that the spectrum of employment laws will protect all workers, not just those in a traditional employer/employee relationship.

Does Sex-Based Favoritism in the Workplace Create a Hostile Work Environment Claim?

There are at least four ways in which sex-based favoritism in the workplace - where the boss favors an employee with whom he is having a sexual relationship - creates legal liability for the employer. First is through a discrimination claim by the other workers who were passed over for a promotion or other benefits that the paramour received. Second is through a "quid pro quo" hostile work environment claim if the other workers refused to accede to the supervisor's demand for a relationship. Third is through a retaliation claim if the other workers protested the supervisor's favoritism and were then retaliated against by management. The fourth is a long-recognized but little used claim for hostile work environment based on sexual favoritism in the workplace.

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