Employment Law

On January 1, 2016, the new Fair Pay Act (Cal. Labor Code §1197.5) in California was amended to broaden already existing laws against gender pay inequality.  The new law is arguably the nation’s strictest (or really, fairest) fair-pay law.

For example, the former Fair Pay Act stated that no employer shall pay any individual in the employer’s employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and performed under similar working conditions.

The amendment to the Fair Pay Act broadened the law such that now an employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.  The notable difference in the amended law is the Fair Pay Act now does not require a comparison of wage rates “in the same establishment.” Rather, wage rates may be compared with those of the opposite sex outside of the same establishment, but whom have “substantially similar work.”

In addition, the amended Fair Pay Act adds a new subsection prohibiting employers from discharging or in any manner discriminating or retaliating against any employee because the employee invoked or assisted in any manner the enforcement of this law.  The new law also now states that an employer shall not prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging other employees to exercise his or her rights of talking about wages.

According to data cited in the legislation, women in California earn an average of 84 cents for every dollar earned by men.   The national average remains roughly 79 cents per dollar for full-time female workers, compared with their male colleagues.  With the law promoting discussion of wage rates amongst co-workers, gender pay inequality will further come to light.

For any employee receiving less than the wage to which the employee is entitled under this law, may recover in a civil action the balance of the wages, including interest, and an equal amount (essentially as a penalty), together with costs of the suit and reasonable attorneys’ fees.

If you believe you are the victim of gender pay inequality, contact the lawyers at Haeggquist & Eck, LLP.

On July 23, 2015, the Second Circuit found that the trial court erred by concluding that contract attorneys “engaging in document review per se constitutes practicing law,” and remanded the case for further proceedings on the issue.  Whether the attorneys were “practicing law” is important because if they were they would be exempt from certain wage and hour benefits and protections.

The class of document review attorneys alleged in their complaint that “a machine” could have performed the document review services because the work did not require any legal knowledge, skill or training.  Circuit Judge Rosemary Pooler found that both parties “agreed at oral argument that an individual who, in the course of reviewing documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”

The definition of the “practice of law” is state-specific, but many states consider the “exercise of some legal judgment an essential element of the practice of law,” including North Carolina where this case is pending.

In sum, if contract attorneys or lower-level associates are merely conducting menial tasks and not exercising some legal judgment, they may be entitled to various wage and hour benefits and protections, such as overtime compensation that exempt employees are not entitled to.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

The U.S. Securities and Exchange Commission (“SEC”) relies heavily on whistleblowers to report potential securities law violations. Insider knowledge of the circumstances and individuals involved allows the SEC to identify fraud and other potential violations much earlier than might otherwise be possible. So, when Houston-based global technology and engineering firm KBR Inc. (“KBR”) attempted to silence potential whistleblowers through employee confidentiality agreements, the SEC put its foot down.

In its first enforcement action regarding confidentiality agreements (In the Matter of KBR, Inc.), the SEC seeks to send a message to other companies regarding the “potential chilling effect” that confidentiality agreements, like KBR’s, have on would-be whistleblowers. KBR’s confidentiality agreement required employees to seek prior approval from the company’s legal department before discussing internal investigations with outside parties. Failure to do so, KBR warned, could lead to discipline, up to and including termination. But, such improperly restrictive language violates SEC’s Rule 21F-17, enacted under the Dodd-Frank Act of 2010, which states:

No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.

Indeed, such blanket provisions fly in the face of the congressional purpose underlying whistleblower protections, which is “to encourage whistleblowers to report possible violations of the securities laws by providing financial incentives, prohibiting employment-related retaliation, and providing various confidentiality guarantees.”

Without admitting or denying the SEC’s charges, KBR settled the matter for $130,000 and agreed to amend its confidentiality agreements to make clear that current and former employees will not have to fear retaliation or termination or seek approval from company lawyers before contacting the SEC. Going forward, the SEC recommends that all companies review and amend their confidentiality agreements that, in word or effect, gag whistleblowers.

For more information about your rights, and a free case evaluation, please call us at (619) 342-8000 or contact us online .

A federal consumer protection statute, the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§1681, et seq., protects employees against employer misuse of an employee’s credit report.  Do not be fooled by FCRA’s title – the statute reaches far beyond the realm of credit reporting and governs, among other things, how credit reports are used in the employment context.

How do you know if there has been a misuse of your credit report?  To answer this, ask yourself the following questions:

First, has your employer or potential employer sought to obtain and use your credit report, which broadly includes any information from a consumer reporting agency bearing on your credit, character, reputation, personal characteristics, or mode of living, for any “employment purpose”?  The term “employment purpose”, when used in connection with a credit report, means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.  15 U.S.C. §1681a(h).

If the answer to the first question is yes, then ask yourself whether your employer disclosed its intention to obtain your credit report and obtained your authorization to do so prior to obtaining the report.  The FCRA provides that ordinarily an employer may not request or obtain a credit report until “the consumer has authorized in writing … the procurement of the report.”  15 U.S.C. §1681b(b)2)(A)(ii).  As to disclosure, the FCRA generally requires that, prior to procuring a credit report, the employer make a clear and conspicuous disclosure that a credit report may be obtained for employment purposes, and that the disclosure is set forth “in a document that consists solely of the disclosure.”  15 U.S.C. §1681b(b)(2)(A)(i). If your employer or potential employer failed to follow these requirements, you may be entitled to recover any actual damages, a statutory damage award of up to $1,000, punitive damages, and recovery of attorneys’ fees and costs.  15 U.S.C. §1681n (civil liability for willful noncompliance); 15 U.S.C. §1681o (civil liability for negligent noncompliance).

Moreover, an employer cannot take an “adverse action” (e.g., decline employment, terminate employment, etc.) based on a credit report without first providing the above disclosures to the prospective or current employee.  If the employer fails to provide this information or fails to give you a reasonable amount of time to review the disclosures, it could be in violation of the FCRA, again, entitling you to damages.

If you feel there has been a willful or negligent misuse of your credit report by an employer or prospective employer or if you have any questions or concerns about the same, contact the attorneys at Haeggquist & Eck, LLP.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!