Compliance Stuff

On August 16, 2024, the Seventh Circuit Court of Appeals weighed in on whether out-of-state plaintiffs must satisfy personal jurisdiction requirements to participate in a collective action under the Fair Labor Standards Act (FLSA). In a 2–1 decision, the Seventh Circuit held they must, joining the Third, Sixth, and Eighth Circuit Courts of Appeals and rejecting the First Circuit Court of Appeals’ position. Smooth ionic columns holding a ceiling seen from a low perspective backed by a blue sky with fluffy clouds Quick Hits On August 16, 2024, the Seventh Circuit held that opt-in plaintiffs must each satisfy personal jurisdiction requirements to participate in FLSA collective actions. The Seventh Circuit joined the Third, Sixth, and Eighth Circuits and rejected the First Circuit’s ruling on personal jurisdiction with respect to the claims of prospective opt-in plaintiffs in FLSA collective actions. The Seventh Circuit held that “a court must establish its jurisdiction over claims one at ...

  In the complex world of eDiscovery, t he responsibilities of in-house counsel are more critical than ever. The stakes are high, and the consequences of missteps can be severe, as highlighted in this week’s Case of the Week. In this blog, we’ll examine the recent decision in   Domus BWW Funding, LLC v. Arch Insurance Company , where a series of eDiscovery failures led to costly and potentially case altering sanctions. This case serves as a cautionary tale for in-house counsel, offering vital lessons on the importance of early preservation, diligent supervision, and honest communication with the Court. Case Background The case of   Domus BWW Funding, LLC v. Arch Insurance Company  was decided on August 12, 2024, by U.S. District Judge Joshua Wolson. This decision, one of 13 in our eDiscovery Assistant database written by Judge Wolson, underscores the importance of proper eDiscovery practices. The issues at hand included cooperation of counsel, spoliation, sanctions,...

  Real World Impact:   U.S. employers should be aware of the global trend of “right to disconnect” laws and should review their policies on after-hours communications to stay ahead of social and legal changes. Last week, Australia's new "right to disconnect" law went into effect. T he law protects employees who choose not to monitor, read, or respond to communications outside of their working hours, with some restrictions. The protection d oes not apply to "unreasonable" refusals or emergency situations. Whether an employee's refusal to respond is considered unreasonable will depend on various factors, including the employee's seniority, personal circumstances such as caregiving responsibilities, the reason for the contact, and the extent of disruption caused to the employee. Australia is not the first to enact such a law. In recent years, more than a dozen countries have enacted some version of this right to disconnect.  As this legislation gains trac...

  On Aug. 9, 2024, Illinois Gov. JB Pritzker signed Senate Bill 0508 into law. This new law provides additional employment protections for individuals flagged by an employment eligibility verification system, including federal E-Verify, as having identification discrepancies . The new rights and protections created by SB 0508 will take effect on Jan. 1, 2025. In May of 2023, the state amended its Illinois Right to Privacy in the Workplace Act . The amendment mandated a specified process employers need to follow if they choose to take an adverse employment action against an employee after receiving notice from an employment eligibility verification system of a discrepancy between an employee’s name and Social Security numbe r. The May 2023 amendment also granted employees certain rights and protections if any such discrepancies arose. On the heels of this prior amendment, SB 0508 clarifies an employee’s rights in the event of an E-Verify “no match.” The new law will prevent emplo...

  Takeaway:  Before conducting a reduction in force, an employer should review its possible exposure to age discrimination claims. A reduction in force (RIF) is not necessarily a sufficient explanation under the California Fair Employment and Housing Act (FEHA) for the dismissal of an older worker , the state Court of Appeals ruled as it sent an age discrimination claim to a jury. The plaintiff, a customer service manager at Pacific World Corp., alleged age discrimination, disability discrimination, and failure to reasonably accommodate following her layoff. The California Court of Appeals affirmed summary judgment for the employer, a personal care products company, on the latter two claims but revived the age discrimination claim. At the time of the layoff, the plaintiff, who was in her early 60s, was training a younger male co-worker to replace her after she retired, which she was planning to do in a few years. The plaintiff reported to the vice president of operations and s...

  The vast majority of citations issued by the Occupational Safety and Health Administration involve accidents or negligent behavior that result in injury or illness resulting from inanimate objects, hazardous materials, or acts of God. In some circumstances however, OSHA cites employers after a criminal act by a third party. Earlier this week, the agency cited a Florida convenience store chain for the maximum $16,131 amount following a shooting during a robbery, which seriously injured the clerk. While OSHA regulations do not address workplace violence, over the years the agency has issued a number of guidelines and best practices for employers with high risks of exposure to workplace violence such as convenience store and health care workers . In this case, OSHA used these guidelines, among others, to cite the employer under the General Duty Clause, a catch-all provision that allows OSHA to issue penalties in the event of exposure to serious injury or death in the absence of a sp...

Question:   My accountant and other are telling me there is some federal government filing that I must make by the end of the year. My personal information is being sought. Can you explain what this is all about, whether I have to do it, and what happens if I decide not to? Answer:  I believe you are referring to the Corporate Transparency Act. Pursuant to the CTA, entities in existence as of Jan. 1, 2024, have until Dec. 31, 2024, to report their “beneficial ownership” to the Financial Crimes Enforcement Network (FinCEN). Entities formed during 2024 have 90 days to make the report. Entities formed after Jan. 1, 2025, will have 30 days to make the report (the best practice will be to do so as part of the formation of the entity). Note that Congress’ stated goal of requiring reporting of beneficial ownership is to strengthen its anti-money-laundering efforts. The CTA contains 23 exceptions to the reporting requirements. Most of these exceptions will not apply to dental practi...

  Real World Impact:   This is the first in a series of Alerts that will provide guidance to employers on navigating the complicated mix of concerns that can arise when dealing with employee mental health issues. Introduction:  Over the past 10 to 15 years, U.S. employers have increasingly been encountering employee mental health issues that impact an employee’s ability to perform his/her job duties as expected and require some variety of reasonable accommodation . Navigating such mental health issues can be difficult on several levels – i.e., personal, professional, and operational. Complicating this landscape is the inherent relationship between mental health, addiction, suicide, and workplace violence, all of which have been trending in the wrong direction for some time. The Big Picture There are some obvious factors that have precipitated this mental health issue trend, including the ubiquitous use of cell phones, social media use, and the fallout from COVID. It appe...

  On Labor Day 50 years ago, President Gerald Ford signed the Employee Retirement Income Security Act (ERISA) into law. ERISA , a long time in the making, has had notable successes—but also has led to much litigation and perhaps even contributed to the decline of pension plans. Congress drafted and revised the law after Studebaker closed its plant in South Bend, Ind., in 1963 and left many employees without the pensions they had been promised. ERISA has “accomplished much of what it set out to do,” said Lou Mazawey, an attorney with Groom Law Group in Washington, D.C. “Without ERISA, there would be far fewer workers with retirement savings and far fewer workers with robust health insurance,” said Juliana Reno, an attorney with Venable in New York City. However, ERISA also has become a weapon for plaintiffs’ attorneys to wield against retirement plan administrators and others in court. “We have seen in the past 10 years an explosion of litigation challenging the fees and investment...

  Learn from a real employer's mistakes. Imagine this scenario: You are advertising for an open position. You get three applicants: Applicant 1 meets or exceeds all of your requirements. Applicant 2 fails to meet your minimum requirements. Applicant 3 meets some of your minimum requirements, but not all.  You interview all three, and what do you do? Oooooh, Robin, pick me! Pick me! Make an offer to #1! I said to "imagine" this scenario, but it's a real-life scenario from a real-life lawsuit. Rather than extend an offer to Applicant 1, the employer in this case offered the job to  both  Applicant 2 and Applicant 3. In other words, it hired two people even though only one position was vacant, and even though Applicant 1 was far more qualified than the others. (Applicant 2 was later moved into a different position for which she was presumably qualified.) "UMM, WE'RE GONNA MOVE IN A YOUNGER, LESS-DISABLED -- ER, I MEAN DIFFERENT -- DIRECTION."  Allow me to i...