New OSHA Rule May Require Employers to Update Drug-Testing Policies

The Occupational Safety and Health Administration’s (OSHA) new reporting rule goes into effect August 10, 2016. Although it does not expressly address post-accident drug testing, OSHA’s commentary related to the new rule makes clear that such testing will now be squarely in the agency’s crosshairs. Accordingly, many employers may want to consider updating their drug-testing policies to ensure OSHA compliance. Continue Reading

Protecting Whistleblowers in the UK – Is the Law Sufficient?

With instances of whistleblowing hitting the press on an ever-increasing basis, does UK law do enough to protect employees who blow the whistle on their employer’s wrongdoing? According to a new report published by the international NGO, Blueprint for Free Speech, and the Thomson Reuters Foundation (the “Report”), the answer to this question is a resounding no. The Report identifies a number of deficiencies in the current statutory regime and argues that the UK falls short of international standards. It goes on to propose 10 urgent reforms and 10 further recommendations.


Whistleblowing occurs when a worker reports or exposes (in most instances to his/her employer, but potentially also to the appropriate regulator or even the press) certain wrongdoing or malpractice in the workplace. English law provides certain protection against victimisation and dismissal related to whistleblowing. Since June 2013, workers – to be protected – must have a reasonable belief that the disclosure is “in the public interest”. Continue Reading

NY Dept of Labor Proposes Drastic Changes to Employers’ Use of Direct Deposit and Payroll Cards

The New York State Department of Labor (NYSDOL) recently published a proposed rule governing how employers pay their employees through direct deposit and payroll debit cards. While the majority of the proposed rule focuses on new requirements regarding the use of payroll cards, the proposal, if adopted, would also effectively require every Empire State employer to obtain re-authorizations for direct deposit from all affected employees.

Requirements for Direct Deposit

New York law already prohibits employers from paying their employees through direct deposit without first obtaining the employees’ advance written consent. With the proposed rule, the NYSDOL seeks to add additional requirements regarding the use of direct deposit consent forms. First and foremost, the form would need to be provided in English and in the primary language of the employee, and must contain:

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Reminder to New Jersey Employers: Shortening the Law Against Discrimination’s Statute of Limitations is Prohibited

Dana E. Feinstein, Reed Smith Summer Associate, contributed to this blog post.  

Employers in New Jersey should be aware that a recent New Jersey Supreme Court decision invalidated a contractual provision that shortened the statute of limitations for bringing a claim for discrimination under the Law Against Discrimination (“LAD”). On June 15, 2016, the New Jersey Supreme Court overturned the lower court’s decision and held that employers cannot impose a contractual limit on the two-year time period allotted to an employee to file a claim of employment discrimination under LAD. See Rodriguez v. Raymours Furniture Co., 2016 N.J. LEXIS 566 (June 15, 2016).

Sergio Rodriguez, a non-native English speaker from Argentina, signed an employment application when applying for a job at Raymour & Flanigan Furniture Stores. The application stated in bold and capitalized letters that the undersigned agreed “that any claim or lawsuit relating to [his] service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit” and that he would waive any conflicting statute of limitations. This contractual six-month limit was far shorter than LAD’s two-year statute of limitations.

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EAT Decision Sheds New Light on Scope of ACAS Code on Ill Health Dismissals

In the recent case of Holmes v Qinetiq Ltd, the Employment Appeal Tribunal (“EAT”) considered for the first time whether the power to increase or decrease an award of compensation for a failure to comply with the ACAS Code of Practice extends to dismissals on the grounds of ill health. The EAT concluded that the ACAS Code does not extend to such dismissals, and is instead limited to disciplinary and poor performance situations.

The background to the decision

Employers are required to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures where a disciplinary procedure has been invoked. If they do not follow the ACAS Code, then employees may be entitled to an increase in compensation of up to 25% (section 207A(2) of Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”)).

In this case, the Employment Tribunal had awarded the claimant, a security guard, compensation for unfair dismissal and unlawful discrimination. He had been dismissed on the grounds of ill health on the basis that he was no longer capable of doing his job. At the tribunal the employer conceded that the dismissal was unfair because it had failed to obtain an up to date Occupational Health report about the claimant’s ability to attend work after an operation to resolve his pain.

The Tribunal dealt with the question of whether the power to increase compensation for failure to comply with the requirements of the relevant ACAS Code of Practice extends to dismissal on ground of ill health. It concluded that the ACAS Code of Practice does not extend to ill health dismissals. The reasons given by the Tribunal relate to the issue of culpability – in that the ACAS Code of Practice “does not apply to internal procedures operated by an employer concerning an employee’s alleged incapability to do the job arising from ill health or sickness absence and nothing more”. The ACAS Code’s application is therefore limited to internal procedures relating to disciplinary situations, including misconduct or poor performance and “the correction or punishment of culpable behaviour of some form or another”.

In this case, no disciplinary procedure was invoked because nothing in his conduct or performance gave rise to a disciplinary situation.

Employment Appeal Tribunal decision 

Amongst other issues, the Employment Appeal Tribunal examined the issue of whether the Tribunal was correct to refuse an increase to the award.

Its view was that the Tribunal was correct to refuse such an increase, and concluded that the power under section 207A(2) of TULR(C)A to increase or decrease an award for compensation for failure to comply with the relevant ACAS Code of Practice does not extend to dismissals on the grounds of ill health.

What does this mean for employers?

This decision has important implications for employers, because it sheds light on the scope and limits of the ACAS Code.

In practice this means that in scenarios where employers dismiss employees for ill health , they are not obliged to follow the ACAS Code of Practice. As a result the increase in compensation under 207A(2) of TULR(C)A is not available to employees in this type of situation.

However, Employers should keep in mind that the position would be different were an employee’s ill health leads to a disciplinary issue and a procedure is followed to address the employee’s alleged misconduct, for example a failure to follow sickness reporting procedures.

The full judgment is available here.

Chicago Employers Must Grant Paid Sick Time: FAQ

The Chicago City Council today voted unanimously in favor of an ordinance that will require every non-construction employer to provide its employees who work in the city with 40 hours of paid sick time per year. Chicago thus joins more than a dozen other states and cities around the country, including California, Connecticut, Massachusetts, Oregon, Vermont, New York City, Philadelphia, San Francisco, Seattle, the District of Columbia, and several cities in New Jersey, in requiring employers to grant employees paid sick days. The ordinance will go into effect July 1, 2017.

The following describes key provisions of the ordinance:

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Los Angeles City Minimum Wage Increase Set to Take Effect July 1, 2016

Los Angeles’ Minimum Wage Ordinance, passed last summer, begins its steady increase to the city’s minimum wage on July 1.  The minimum wage will eventually increase to $15.00 by the year 2020 for large employers.  Smaller employers will enjoy a one-year reprieve.  With an estimated 800,000 people currently earning the minimum wage in Los Angeles, this legislation will have very real and practical ramifications on employers throughout the city. Continue Reading

First Round of Defend Trade Secrets Act Complaints Alleging Misappropriation Activity Both Before and After DTSA’s Enactment: Will They Stick?

This is a guest post from our colleagues in Reed Smith’s Intellectual Property, Information and Innovation Group. For additional reading on the Defend Trade Secrets Act, please see our prior Employment Law Watch blog post, “New Immunity Given To Employees Who Disclose Employer Trade Secrets.” 

Following President Obama’s signing of the federal Defend Trade Secrets Act (“DTSA” or the “Act”) into law last week, parties are beginning to file lawsuits asserting claims under the DTSA. As widely reported, before the DTSA’s enactment, civil trade secret legislation was solely a creature of state law.  Consequently, absent another basis for federal jurisdiction, parties could only bring a civil trade secret claim in state court. The DTSA dramatically changed trade secret litigation practice by opening the door to federal court through creation of a federal civil trade secret misappropriation cause of action. Continue Reading

U.S. DOL Releases Final Revisions on Overtime Protections

Today, the U.S. Department of Labor (DOL) released its highly anticipated final revisions to the Fair Labor Standards Act’s (FLSA) so-called “white collar” exemptions, the first major update to the federal overtime rules in more than a decade. Although the final rule is somewhat similar to the proposed rule published by the DOL last summer, it does contain at least one notable difference: namely, that the pay threshold for exempt employees will increase from $455/week to “only” $913/week, rather than $970/week as initially proposed. In addition, despite rampant speculation, the final rule does not modify the “duties” tests associated with the exemptions.

Read more in our published Client Alert on

New Immunity Given To Employees Who Disclose Employer Trade Secrets

On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 (DTSA) into law, which takes effect immediately. Apart from adding fresh arrows into the quivers of companies that seek to prevent trade secret theft, it also creates new obligations for employers and opens the door for workers to disclose trade secrets under certain circumstances.

First, the new law provides immunity to persons from civil and criminal liability under both federal and state trade secret law for the disclosure of a trade secret that is (1) made in confidence to a federal, state, or local government official or to an attorney for the sole purpose of reporting or investigating a suspected violation of law; or (2) made in a filing under seal in “a lawsuit or other proceeding.” The statute also includes a provision that further specifies that an individual “who files a lawsuit for retaliation by an employer for reporting a suspected violation of law” may disclose the trade secret to his attorney and use the trade secret information in the court proceeding, if the individual files the documents containing the trade secret under seal, and does not disclose the trade secret except by court order. Continue Reading