Employment Law Update: A Look Back and a Look Ahead · 2009 Cumulative Supplement of Employment Discrimination Law (4th ed.). Education ... Family & Medical Leave Act (FMLA), Title

Employment LawEmployment LawUpdate: A Look BackUpdate: A Look Backand a Look Aheadand a Look Ahead

January 19, 2011

Table of ContentsSpeaker Biographies.......................................................................................................................... Tab 1

Daily Labor Report®........................................................................................................................... Tab 2

US Department of Labor Wage and Hour: Break Time for Nursing Mothers under FLSA ................ Tab 3

United States District Court Alternative Dispute Resolution .............................................................. Tab 4

The Supreme Court Accepts Certiorari In Dukes v. Wal-Mart And Will Decide Key Class CertificationIssues In 2011.................................................................................................................................... Tab 5

Final Disability Regulations Coming Soon ......................................................................................... Tab 6

NLRB Proposes Rule Requiring Employers To Notify Employees Of Their Right To Join A Union...Tab 7

EEOC Issues Final Regulations To Title II Of GINA.......................................................................... Tab 8

OFCCP Releases Fall 2010 Regulatory Agenda............................................................................... Tab 9

New York State Enacts New Wage Theft Prevention Act.................................................................. Tab 10

Robert S. WhitmanNew York Office

(212) 218-5629

[email protected]

Areas of Practice

Labor & Employment

Experience

Rob Whitman is a partner in the Labor & Employment Department with extensive experience representing

management in the full range of employment law matters. He has particular expertise in wage-hour

litigation, employment discrimination, non-compete matters, arbitration, and employment counseling.

Mr. Whitman has authored articles on employment law issues for a number of publications, including

Corporate Counsel, New York Employment Law & Practice, The New York Law Journal, The Corporate

Board and Employment Law Strategist. He has appeared on CNN, Bloomberg TV and NPR as a

commentator on employment law issues and has been quoted frequently in the print media. He also

lectures regularly and leads panel discussions before professional audiences.

Mr. Whitman has been recognized repeatedly as one of the top employment lawyers in Manhattan in polls

conducted by New York Super Lawyers. In June 2008, he received the Award for Pro Bono Leadership

from Lawyers Alliance for New York in recognition of his pro bono representation of not-for-profit

organizations throughout New York City.

After law school, Mr. Whitman was a Law Clerk to the Honorable J. Edward Lumbard of the U.S. Court of

Appeals for the Second Circuit. He has also served as a Trial Attorney in the Civil Division of the U.S.

Department of Justice and as in-house employment counsel for the U.S. Senate.

Mr. Whitman is a member of the Advisory Board of the Center for Labor & Employment Law at NYU Law

School. He also serves on the Editorial Advisory Board of Law360 and was an Associate Editor of the

2009 Cumulative Supplement of Employment Discrimination Law (4th ed.).

Education

J.D., University of Michigan, magna cum laude (1989)

Order of the Coif

Book Review Editor, Michigan Law Review

B.S., Industrial and Labor Relations, Cornell University (1986)

Admissions

New York

Courts

U.S. Supreme Court

U.S. Courts of Appeals for the Second, Third and Fifth Circuits

U.S. District Court for the District of Columbia

U.S. District Courts for the Southern, Eastern and Northern Districts of New York

Affiliations

Center for Labor & Employment Law, NYU Law School (Advisory Board)

American Bar Association (active member of Labor and Employment Section)

Cornell University ILR School Alumni Association

CPR Institute of Conflict Prevention and Resolution (member of Advisory Board of Alternatives)

Accolades

Pro Bono Leadership Award from Lawyers Alliance for New York (June 2008)

Christopher LoweNew York Office

(212) 218-5523

[email protected]

Area of Practice

Labor and Employment

Experience

Mr. Lowe is a partner practicing labor and employment law in the New York office of Seyfarth Shaw LLP.

He represents companies in virtually all areas of employment law, with an emphasis on complex and

multi-plaintiff litigation, including wage and hour collective actions and civil rights class actions. Mr. Lowe

also provides day-to-day counseling and advice to clients concerning the Fair Labor Standards Act

(FLSA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the

Family & Medical Leave Act (FMLA), Title VII, and the Worker Adjustment and Retraining Notification Act

(WARN), as well as numerous state and local laws governing unlawful harassment, discrimination,

retaliation and discharge. Mr. Lowe has also given numerous speeches and presentations concerning

recent developments in the FLSA’s white-collar exemptions, litigating FLSA collective actions, and

electronic discovery.

Prior to joining Seyfarth Shaw, Mr. Lowe was employment counsel with Chubb & Son.

Education

J.D., Seton Hall University School of Law, cum laude (1998)

M.B.A., W. Paul Stillman School of Business, Seton Hall University (1998)

B.A., St. Michael’s College, cum laude (1992)

Omicron Delta Epsilon

Admissions

New York

New Jersey

Courts

U.S. Court of Appeals for the Second and Third Circuits

U.S. District Court for the Eastern and Southern Districts of New York

U.S. District Court for the District of New Jersey

Publications

“TRI-STATE LAW BULLETIN,” Seyfarth Shaw LLP, Editor.

“THE POLICY CORNER: The Religious Accommodations Game,” HR Advisor, Vol. II, No. 2, with

Robert J. Nobile (March/April 2005).

“ACTING COLLECTIVELY IN EMPLOYMENT DISPUTES: Plaintiffs Seeking Class-Wide Relief Turn

Their Attention to the Fair Labor Standards Act,” New York Law Journal, with Peter A. Walker and

Lorie E. Almon (June 28, 2004).

“POLLARD V. DUPONT: Much Ado About Nothing,” New York Law Journal, with Peter A. Walker

(September 15, 2001).

Caitlin SenffNew York Office

(212) 218-5572

[email protected]

Areas of Practice

Labor & Employment

Experience

Caitlin Senff is an associate in the New York office of Seyfarth Shaw LLP. A member of the Labor &

Employment department, she represents and counsels employers in all areas of employment law,

including state and federal wage and hour, discrimination and harassment matters, retaliation, and

employee policy and procedure development.

Prior to joining the firm, Ms. Senff was a summer associate at Seyfarth Shaw. During law school, Ms.

Senff served as a judicial extern in the New York District Office of the Equal Employment Opportunity

Commission.

Education

J.D., St. Johns University School of Law (2008)

St. Thomas More Scholar; Articles & Notes Editor, American Bankruptcy Institute Law Review;

Public Interest Committee

B.A., James Madison University (2005)

Admissions

New York

Courts

U.S. District Court for the Eastern and Southern Districts of New York

Publications

"Using Credit History Wisely” Human Resource Executive Online (January 5, 2009) (Co-Authored

with Pamela Devata)

1

Aaron WarshawNew York Office

(212) 218-5295

[email protected]

Areas of Practice

Labor & Employment

Experience

Mr. Warshaw is an associate in the New York office of Seyfarth Shaw LLP and a member of the Labor &

Employment Department. Prior to joining the firm, Mr. Warshaw served as a law clerk in the Eastern

District of New York to the Honorable Arlene R. Lindsay and the Honorable Ramon E. Reyes, Jr.

Mr. Warshaw is an Adjunct Instructor of Legal Writing at Brooklyn Law School and a member of the

Federal Bar Council’s Inn of Court.

Education

J.D., Brooklyn Law School, cum laude (2007)

Editor-In-Chief, Brooklyn Journal of International Law; Moot Court Honor Society; Law Student

Legal Ethics Award, New York State Bar Association; Leonard Taubenblatt Award for Ethics;

Oxford University Press Law Division Award; Charles and Jane Ortner Prize for Achievement in

Entertainment Law

B.A., Wayne State University (2001)

Admissions

New York

Affiliations

Federal Bar Council

Source: Daily Labor Report: News Archive > 2010 > December > 12/29/2010 > SpecialReport > Whistleblowers: SEC Whistleblower Proposal Draws Mixed Comments on Role of Internal Programs

249 DLR C-1Whistleblowers

SEC Whistleblower Proposal Draws MixedComments on Role of Internal Programs

Commenters on a Securities and Exchange Commission proposed rule that would implement a newwhistleblower program to help the agency unearth securities law violations argued that employees ofpublicly traded companies should be required to report any alleged wrongdoing to internal complianceprograms in order to be eligible for a monetary award under the program.

But that position was opposed by other commenters, who argued that such a requirement could havea chilling effect on whistleblowers' willingness to make assertions of wrongdoing against theiremployers and that the requirement does not comply with the statute creating the whistleblowerprogram.

SEC received by the Dec. 17 comment-period deadline dozens of comments responding to theagency's proposed rule, issued Nov. 3, implementing the Dodd-Frank Wall Street Reform andConsumer Protection Act's whistleblower program (216 DLR A-12, 11/9/10).

There also was deep disagreement among commenters concerning the overall impact of the proposedrule, with some saying the proposal, if made final, would limit the “promise” of an effectivewhistleblower program, and others claiming the proposal deviates materially from the statute's intent.

Other commenters said whistleblowers should be prohibited from hiring lawyers on a contingencybasis to assist in the recovery of a whistleblower award under the act, claiming that such anarrangement could lead to a flood of frivolous complaints.

Proposed Rule Addresses Act's Bounty Provision

The Dodd-Frank law repealed Section 21A(e) of the Securities Exchange Act, which instituted aninsider trading bounty program. Upon enactment of Dodd-Frank, SEC rescinded rules it hadpromulgated to administer the bounty program under the repealed provision.

Section 922 of Dodd-Frank created new Section 21F of the Securities Exchange Act. The new provisionestablished a whistleblower program requiring SEC to pay monetary awards to eligible whistleblowerswho voluntarily provide SEC with original information about a violation of federal securities laws thatleads to the successful enforcement of a covered judicial or administration action resulting inmonetary sanctions exceeding $1 million.

The SEC proposed rule states that SEC's Whistleblower Office would administer the program, andstates that no persons engaging in wrongdoing would be eligible to receive an award for effectivelyturning themselves into SEC.

Dodd-Frank contains several provisions that create or expand whistleblower protections foremployees, including Section 1057, which covers almost any employee working in the financialservices industry, and Section 922, which creates a new private cause of action for employees whogive original information that results in SEC monetary sanctions or who assist with SEC investigations,or make required or protected disclosures under the Sarbanes-Oxley Act or other laws within theSEC's jurisdiction.

SEC's proposed rule does not interpret the whistleblower protection provisions or establish proceduresfor processing employee retaliation claims. Instead, SEC said, the proposal was developed “toimplement Section 21F of the Exchange Act …, outline the procedures for applying for awards and theCommission's procedures for making decisions on claims, and generally explain the scope of thewhistleblower program to the public and to potential whistleblowers.”

Daily Labor Report®

Page 1 of 7Daily Labor Report

12/30/2010http://news.bna.com/dlln/display/batch_print_display.adp

The proposal solicited additional comments on a variety of issues, including the appropriate definitionsof a “voluntary” disclosure by a whistleblower, and the meaning of a whistleblower's “independentknowledge” and “original information.”

Business Groups Defend Corporate Compliance Efforts

One of the more contentious topics addressed by commenters was the role of existing internalcompliance and whistleblower programs within publicly traded companies.

Several commenters warned that SEC implementation of Dodd-Frank should not undermine existingcorporate compliance programs.

“We are concerned … that an unintended consequence of these new incentives will be to weakenexisting internal whistleblower programs and compliance and ethics programs that have contributed toadvancing these same goals,” an Oct. 12 comment letter submitted by law firm Baker, Donelson,Bearman, Caldwell & Berkowitz said.

The Securities Industry and Financial Markets Association said in its Dec. 17 comment letter that theinternal compliance reporting systems of American businesses have been “critical” in helpingcompanies prevent and detect corporate misconduct. SIFMA expressed concern that if SEC rules leaveemployee whistleblowers free to bypass employers in reporting misconduct to governmentauthoritites, it would “weaken the overall system of prevention and detection.”

An Oct. 25 comment letter from the law firm Arent Fox recommended that whistleblowers be requiredto report internally an alleged wrongdoing to their firms to be eligible for an SEC whistleblower award.“Such a required prerequisite would … afford companies the opportunity to take their own remedialaction including self-reporting,” the law firm noted, adding that “[a]bsent such an opportunity,companies will be deprived of the benefits of self-reporting under federal sentencing and current SECand Department of Justice guidelines.”

The U.S. Chamber of Commerce filed a Dec. 17 comment stating that it did not object to theestablishment of “a reasonable whistleblower program that allows individuals to bring actionableinformation to the attention of the SEC when the company itself is unwilling or unable to engage ineffective self-policing,” but the group said SEC's proposed rule “creates a set of incentives that areskewed overwhelmingly in favor of direct reporting to the SEC—even when companies are willing to,and fully capable of, addressing reports through their internal compliance programs.”

The chamber observed that the SEC's preamble to the proposed rule acknowledged a risk that afederal whistleblower program could undermine the effectiveness of corporate compliance systems.“The interests of investors, employees, and taxpayers would be better served by an approach thatrecognizes and preserves legitimate internal compliance mechanisms as the first line of defenseagainst wrongdoing, with the SEC whistleblower program serving in an important supporting role,” thechamber of commerce argued.

One key issue discussed by many commenters was when SEC will consider information to be“original.” Butler University professor Mike Koehler said in a Sept. 3 comment letter one result ofdeciding when information is original could be a “competitive, high-stakes game of ‘who has thefastest car’ to Washington to disclose allegedly illegal behavior.”

The Baker Donelson letter suggested that if SEC deemed a complaint submitted by whistleblowers totheir firms' internal compliance programs included detail sufficient to enable the company to initiate ameaningful investigation before a similar submission was made to SEC, then the information should beevaluated on the date of the prior submission.

Whistleblower Advocates Urge Broad Protection

But several organizations warned that corporate compliance programs should not be allowed to

There also was deep disagreement among commentersconcerning the overall impact of the proposed rule, with somesaying the proposal, if made final, would limit the “promise” ofan effective whistleblower program, and others claiming the

proposal deviates materially from the statute's intent.



interfere with employee whistleblowing. In a Nov. 1 comment, officials of the National WhistleblowerCenter in Washington, D.C., said corporate compliance programs “have not worked” and “did not workto prevent Enron, WorldCom and the other corporate scandals that resulted in the enactment of theSarbanes-Oxley Act.”

“Any rule that would allow a corporation to make whistleblower protection contingent on compliancewith an internal reporting scheme would illegally limit and chill the right of employees to anonymouslydisclose information to law enforcement agencies,” NWC wrote.

The organization said it has no objection to the creation of corporate compliance offices and employeehotlines for reporting misconduct and corruption, but opposes making the use of such reportingchannels mandatory for employees.

NWC argued that Baker Donelson justified “regressive” suggestions by citing a need to prevent thefiling of frivolous or abusive whistleblower claims, but the whistleblower center said that LaborDepartment whistleblower retaliation decisions issued under Sarbanes-Oxley showed that “[i]n theeight years of SOX's existence, despite more than 1,000 SOX cases filed, the DOL only lists fiverequests by employers for sanctions,” all of which were denied by administrative law judges or byDOL's Administrative Review Board.

Similar skepticism about corporate compliance and reporting procedures was expressed in a Dec. 17comment filed by Voices for Corporate Responsibility, a project of law firms Grant & Eisenhofer, Mehri& Skalet, and the Employment Law Group. The labor federation Change to Win joined in the filing,along with the National Employment Lawyers Association, and the Government Accountability Project.

The VCR group's comment criticized the SEC proposal as “an attempt to balance a tension betweenSEC compliance enforcement and self regulation” that provided too much deference to corporatecompliance programs. “In its rulemaking efforts,” VCR wrote, “the Commission must be reminded thatdeference is not warranted where, by definition, securities fraud occurs with the knowledge andconsent of the highest levels of corporate governance.” Against such a “backdrop,” the commentwarned, “internal compliance programs will almost certainly fail to effect change.”

Voices for Corporate Responsibility also argued that SEC's proposal improperly limits the definition of awhistleblower who may claim an award for disclosing potential violations of federal securities laws.

The proposed rule requires that a whistleblower must be an individual, not a “company or otherentity,” but VCR contended that use of the word “individual” under the False Claims Act has beenconstrued to allow labor unions and nongovernmental organizations to pursue qui tam claims. “Laborunions and NGOs, by their very nature, understand the complexities of the administrative complianceprocess and potentially have the experience to manage claims.” Discouraging such organizations fromacting as whistleblowers and reporting violations of law to the SEC “defeats the overall intent of theAct,” the group wrote.

Attorney David Sanford of Sanford Wittels & Heisler, a law firm representing whistleblowers under theFalse Claims Act and other statutes, filed a Dec. 17 comment, noting that a whistleblower is onlyentitled to an award under Dodd-Frank if the individual submits information voluntarily to SEC. Underthe proposed rule, Sanford wrote, a voluntary submission must occur before an employee receives“any request, inquiry or demand” from the commission.

Sanford observed that many employees are required to sign confidentiality agreements that wouldpreclude them from submitting information to SEC unless the government agency issued a subpoenaor other request that compelled the employee's cooperation.

“Thus,” the lawyer wrote, “the proposed rule would potentially force many individuals with vitalinformation about violations of federal securities laws to cho[o]se between breaching their confidential[it]y agreements with employers and providing information to the Commission in a manner underwhich they would be eligible for an award.”

A “better approach,” the comment said, “would be for the rule to allow for whistleblowers topreliminarily come forward and represent to the Commission that they possess information, andindicate their preference to provide that information pursuant to a subpoena or other request so asnot to run afoul of any confidentiality agreements they might have signed with their employer.”

Contingency Fees in Award Cases Debated

The Baker Donelson letter also suggested that SEC disallow contingency fee representation of



whistleblowers, arguing that SEC could be “inundated with frivolous claims or claims based onincomplete information brought by attorneys who represent multiple complainants, hoping that one ofthem will be successful in an award from the SEC.”

The SEC proposed rule did not directly address that concern, but it did say the agency expects thatmore than 90 percent of all whistleblowers likely will enter into a contingency fee arrangement with alawyer.

Restrictions on attorneys' fees are “radical and without support in law or policy,” the NWC letter said.“There is no legal authority for the SEC to interfere with the contractual relationship between awhistleblower and his or her attorney,” it added.

By Stephen Joyce in New York and Lawrence E. Dubé

Text of the comment letters may be accessed at http://www.sec.gov/comments/df-title-ix/whistleblower/whistleblower.shtml.

Source: Daily Labor Report: News Archive > 2010 > December > 12/29/2010 > SpecialReport > Whistleblowers: SEC Whistleblower Proposal Draws Mixed Comments on Role of Internal Programs

249 DLR C-1Whistleblowers

SEC Whistleblower Proposal Draws MixedComments on Role of Internal Programs

Commenters on a Securities and Exchange Commission proposed rule that would implement a newwhistleblower program to help the agency unearth securities law violations argued that employees ofpublicly traded companies should be required to report any alleged wrongdoing to internal complianceprograms in order to be eligible for a monetary award under the program.

But that position was opposed by other commenters, who argued that such a requirement could havea chilling effect on whistleblowers' willingness to make assertions of wrongdoing against theiremployers and that the requirement does not comply with the statute creating the whistleblowerprogram.

SEC received by the Dec. 17 comment-period deadline dozens of comments responding to theagency's proposed rule, issued Nov. 3, implementing the Dodd-Frank Wall Street Reform andConsumer Protection Act's whistleblower program (216 DLR A-12, 11/9/10).

There also was deep disagreement among commenters concerning the overall impact of the proposedrule, with some saying the proposal, if made final, would limit the “promise” of an effectivewhistleblower program, and others claiming the proposal deviates materially from the statute's intent.

Other commenters said whistleblowers should be prohibited from hiring lawyers on a contingencybasis to assist in the recovery of a whistleblower award under the act, claiming that such anarrangement could lead to a flood of frivolous complaints.

Proposed Rule Addresses Act's Bounty Provision

The Dodd-Frank law repealed Section 21A(e) of the Securities Exchange Act, which instituted aninsider trading bounty program. Upon enactment of Dodd-Frank, SEC rescinded rules it hadpromulgated to administer the bounty program under the repealed provision.

Section 922 of Dodd-Frank created new Section 21F of the Securities Exchange Act. The new provisionestablished a whistleblower program requiring SEC to pay monetary awards to eligible whistleblowerswho voluntarily provide SEC with original information about a violation of federal securities laws thatleads to the successful enforcement of a covered judicial or administration action resulting inmonetary sanctions exceeding $1 million.

The SEC proposed rule states that SEC's Whistleblower Office would administer the program, andstates that no persons engaging in wrongdoing would be eligible to receive an award for effectivelyturning themselves into SEC.

Dodd-Frank contains several provisions that create or expand whistleblower protections foremployees, including Section 1057, which covers almost any employee working in the financialservices industry, and Section 922, which creates a new private cause of action for employees whogive original information that results in SEC monetary sanctions or who assist with SEC investigations,



or make required or protected disclosures under the Sarbanes-Oxley Act or other laws within theSEC's jurisdiction.

SEC's proposed rule does not interpret the whistleblower protection provisions or establish proceduresfor processing employee retaliation claims. Instead, SEC said, the proposal was developed “toimplement Section 21F of the Exchange Act …, outline the procedures for applying for awards and theCommission's procedures for making decisions on claims, and generally explain the scope of thewhistleblower program to the public and to potential whistleblowers.”

The proposal solicited additional comments on a variety of issues, including the appropriate definitionsof a “voluntary” disclosure by a whistleblower, and the meaning of a whistleblower's “independentknowledge” and “original information.”

Business Groups Defend Corporate Compliance Efforts

One of the more contentious topics addressed by commenters was the role of existing internalcompliance and whistleblower programs within publicly traded companies.

Several commenters warned that SEC implementation of Dodd-Frank should not undermine existingcorporate compliance programs.

“We are concerned … that an unintended consequence of these new incentives will be to weakenexisting internal whistleblower programs and compliance and ethics programs that have contributed toadvancing these same goals,” an Oct. 12 comment letter submitted by law firm Baker, Donelson,Bearman, Caldwell & Berkowitz said.

The Securities Industry and Financial Markets Association said in its Dec. 17 comment letter that theinternal compliance reporting systems of American businesses have been “critical” in helpingcompanies prevent and detect corporate misconduct. SIFMA expressed concern that if SEC rules leaveemployee whistleblowers free to bypass employers in reporting misconduct to governmentauthoritites, it would “weaken the overall system of prevention and detection.”

An Oct. 25 comment letter from the law firm Arent Fox recommended that whistleblowers be requiredto report internally an alleged wrongdoing to their firms to be eligible for an SEC whistleblower award.“Such a required prerequisite would … afford companies the opportunity to take their own remedialaction including self-reporting,” the law firm noted, adding that “[a]bsent such an opportunity,companies will be deprived of the benefits of self-reporting under federal sentencing and current SECand Department of Justice guidelines.”

The U.S. Chamber of Commerce filed a Dec. 17 comment stating that it did not object to theestablishment of “a reasonable whistleblower program that allows individuals to bring actionableinformation to the attention of the SEC when the company itself is unwilling or unable to engage ineffective self-policing,” but the group said SEC's proposed rule “creates a set of incentives that areskewed overwhelmingly in favor of direct reporting to the SEC—even when companies are willing to,and fully capable of, addressing reports through their internal compliance programs.”

The chamber observed that the SEC's preamble to the proposed rule acknowledged a risk that afederal whistleblower program could undermine the effectiveness of corporate compliance systems.“The interests of investors, employees, and taxpayers would be better served by an approach thatrecognizes and preserves legitimate internal compliance mechanisms as the first line of defenseagainst wrongdoing, with the SEC whistleblower program serving in an important supporting role,” thechamber of commerce argued.

One key issue discussed by many commenters was when SEC will consider information to be“original.” Butler University professor Mike Koehler said in a Sept. 3 comment letter one result ofdeciding when information is original could be a “competitive, high-stakes game of ‘who has thefastest car’ to Washington to disclose allegedly illegal behavior.”

There also was deep disagreement among commentersconcerning the overall impact of the proposed rule, with somesaying the proposal, if made final, would limit the “promise” ofan effective whistleblower program, and others claiming the

proposal deviates materially from the statute's intent.



The Baker Donelson letter suggested that if SEC deemed a complaint submitted by whistleblowers totheir firms' internal compliance programs included detail sufficient to enable the company to initiate ameaningful investigation before a similar submission was made to SEC, then the information should beevaluated on the date of the prior submission.

Whistleblower Advocates Urge Broad Protection

But several organizations warned that corporate compliance programs should not be allowed tointerfere with employee whistleblowing. In a Nov. 1 comment, officials of the National WhistleblowerCenter in Washington, D.C., said corporate compliance programs “have not worked” and “did not workto prevent Enron, WorldCom and the other corporate scandals that resulted in the enactment of theSarbanes-Oxley Act.”

“Any rule that would allow a corporation to make whistleblower protection contingent on compliancewith an internal reporting scheme would illegally limit and chill the right of employees to anonymouslydisclose information to law enforcement agencies,” NWC wrote.

The organization said it has no objection to the creation of corporate compliance offices and employeehotlines for reporting misconduct and corruption, but opposes making the use of such reportingchannels mandatory for employees.

NWC argued that Baker Donelson justified “regressive” suggestions by citing a need to prevent thefiling of frivolous or abusive whistleblower claims, but the whistleblower center said that LaborDepartment whistleblower retaliation decisions issued under Sarbanes-Oxley showed that “[i]n theeight years of SOX's existence, despite more than 1,000 SOX cases filed, the DOL only lists fiverequests by employers for sanctions,” all of which were denied by administrative law judges or byDOL's Administrative Review Board.

Similar skepticism about corporate compliance and reporting procedures was expressed in a Dec. 17comment filed by Voices for Corporate Responsibility, a project of law firms Grant & Eisenhofer, Mehri& Skalet, and the Employment Law Group. The labor federation Change to Win joined in the filing,along with the National Employment Lawyers Association, and the Government Accountability Project.

The VCR group's comment criticized the SEC proposal as “an attempt to balance a tension betweenSEC compliance enforcement and self regulation” that provided too much deference to corporatecompliance programs. “In its rulemaking efforts,” VCR wrote, “the Commission must be reminded thatdeference is not warranted where, by definition, securities fraud occurs with the knowledge andconsent of the highest levels of corporate governance.” Against such a “backdrop,” the commentwarned, “internal compliance programs will almost certainly fail to effect change.”

Voices for Corporate Responsibility also argued that SEC's proposal improperly limits the definition of awhistleblower who may claim an award for disclosing potential violations of federal securities laws.

The proposed rule requires that a whistleblower must be an individual, not a “company or otherentity,” but VCR contended that use of the word “individual” under the False Claims Act has beenconstrued to allow labor unions and nongovernmental organizations to pursue qui tam claims. “Laborunions and NGOs, by their very nature, understand the complexities of the administrative complianceprocess and potentially have the experience to manage claims.” Discouraging such organizations fromacting as whistleblowers and reporting violations of law to the SEC “defeats the overall intent of theAct,” the group wrote.

Attorney David Sanford of Sanford Wittels & Heisler, a law firm representing whistleblowers under theFalse Claims Act and other statutes, filed a Dec. 17 comment, noting that a whistleblower is onlyentitled to an award under Dodd-Frank if the individual submits information voluntarily to SEC. Underthe proposed rule, Sanford wrote, a voluntary submission must occur before an employee receives“any request, inquiry or demand” from the commission.

Sanford observed that many employees are required to sign confidentiality agreements that wouldpreclude them from submitting information to SEC unless the government agency issued a subpoenaor other request that compelled the employee's cooperation.

“Thus,” the lawyer wrote, “the proposed rule would potentially force many individuals with vitalinformation about violations of federal securities laws to cho[o]se between breaching their confidential[it]y agreements with employers and providing information to the Commission in a manner underwhich they would be eligible for an award.”



A “better approach,” the comment said, “would be for the rule to allow for whistleblowers topreliminarily come forward and represent to the Commission that they possess information, andindicate their preference to provide that information pursuant to a subpoena or other request so asnot to run afoul of any confidentiality agreements they might have signed with their employer.”

Contingency Fees in Award Cases Debated

The Baker Donelson letter also suggested that SEC disallow contingency fee representation ofwhistleblowers, arguing that SEC could be “inundated with frivolous claims or claims based onincomplete information brought by attorneys who represent multiple complainants, hoping that one ofthem will be successful in an award from the SEC.”

The SEC proposed rule did not directly address that concern, but it did say the agency expects thatmore than 90 percent of all whistleblowers likely will enter into a contingency fee arrangement with alawyer.

Restrictions on attorneys' fees are “radical and without support in law or policy,” the NWC letter said.“There is no legal authority for the SEC to interfere with the contractual relationship between awhistleblower and his or her attorney,” it added.

By Stephen Joyce in New York and Lawrence E. Dubé

Text of the comment letters may be accessed at http://www.sec.gov/comments/df-title-ix/whistleblower/whistleblower.shtml.

Contact us at http://www.bna.com/contact/index.html or call 1-800-372-1033

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U.S. Department of Labor Wage and Hour Division

(Revised December 2010)

Fact Sheet #73: Break Time for Nursing Mothers under the FLSA This fact sheet provides general information on the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (“PPACA”), which took effect when the PPACA was signed into law on March 23, 2010 (P.L. 111-148). This law amended Section 7 of the Fair Labor Standards Act (FLSA). General Requirements Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” The FLSA requirement of break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth). Time and Location of Breaks Employers are required to provide a reasonable amount break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary. A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public. Coverage and Compensation Only employees who are not exempt from section 7, which includes the FLSA’s overtime pay requirements, are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the requirements of Section 7, they may be obligated to provide such breaks under State laws. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply. Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for

break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA. Where to Obtain Additional Information For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243). This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210

1-866-4-USWAGE TTY: 1-866-487-9243

Contact Us

http://www.dol.gov/whd/regs/compliance/whdfs22.htm


http://www.wagehour.dol.gov/

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80073 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices

functions of the agency, including whether the information will have practical utility;

• Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Enhance the quality, utility, and clarity of the information to be collected; and

• Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.

A copy of the proposed information collection request can be obtained by contacting the employee listed in the FOR FURTHER INFORMATION CONTACT section of this notice, or viewed on the Internet by selecting ‘‘Rules & Regs’’, and then selecting ‘‘FedReg.Docs’’. On the next screen, select ‘‘Paperwork Reduction Act Supporting Statement’’ to view documents supporting the Federal Register notice.

III. Current Actions

This notice contains a request for public comment on the extension of the information collection for existing notification, recordkeeping, and reporting provisions for radiation sampling and exposure records. MSHA does not intend to publish the results from this information collection and is not seeking approval to either display or not display the expiration date for the OMB approval of this information collection.

There are no certification exceptions identified with this information collection and the collection of this information does not employ statistical methods.

Type of Review: Extension. Agency: Mine Safety and Health

Administration. OMB Number: 1219–0003. Frequency: On Occasion. Affected Public: Business or other for-

profit. Cost to Federal Government: $747. Total Burden Respondents: 5. Total Number of Responses: 255. Total Burden Hours: 502 hours. Total Hour Burden Cost: $17,018. Comments submitted in response to

this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.

Dated: December 14, 2010. Patricia W. Silvey, Director, Office of Standards, Regulations, and Variances. [FR Doc. 2010–31815 Filed 12–20–10; 8:45 am]

BILLING CODE 4510–43–P

DEPARTMENT OF LABOR

Wage and Hour Division

RIN 1235–ZA00

Reasonable Break Time for Nursing Mothers

AGENCY: Wage and Hour Division, United States Department of Labor. ACTION: Request for Information from the public.

SUMMARY: This notice is a request for information from the public regarding the recent amendment to the Fair Labor Standards Act (FLSA) that requires employers to provide reasonable break time and a place for nursing mothers to express breast milk for one year after their child’s birth. The Department of Labor (‘‘the Department’’) administers and enforces the FLSA through its Wage and Hour Division. Contained in this notice are the Department’s preliminary interpretations of the new break time amendment to the FLSA. The Department seeks information and comments for its review on various issues addressed in this notice, as it considers how best to help employers and employees understand the requirements of the break time for nursing mothers law.

The break time requirement that is now part of the FLSA is set forth in Section 4207 of the Patient Protection and Affordable Care Act, Public Law 111–148 (‘‘Affordable Care Act’’). The provision requires employers to provide ‘‘reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.’’ Employers are also required to provide ‘‘a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.’’ See 29 U.S.C. 207(r).

The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010. To assist employers with complying with the new law, the Department has issued Wage and Hour Fact Sheet #73: ‘‘Break Time for Nursing Mothers under the FLSA’’ at http://www.dol.gov/whd/ regs/compliance/whdfs73.pdf. The Department has also posted Frequently

Asked Questions (FAQs) on its Web site that reiterate the information provided in the Fact Sheet in a different format. Until the Department issues final guidance, the Department’s enforcement will be based on the statutory language and the guidance provided in WHD Fact Sheet #73 and the associated FAQs.

Employers, employees, and other stakeholders have requested additional guidance from the Department about the law’s requirements and the Department wants to provide an opportunity for the public to submit information and comments for its consideration. The Department will consider the information and comments received in response to this Request for Information in formulating further guidance for the regulated community on complying with the new break time requirement. Until any such further guidance is issued, the RFI provides useful information for employers to consider in establishing policies for nursing employees.

At this time, the Department does not plan to issue regulations implementing this provision. Because of the wide variety of workplace environments, work schedules, and individual factors that will impact the number and length of breaks required by a nursing mother, as well as the manner in which an employer complies with break time requirement, the Department believes that regulations may not be the most useful or effective means for providing initial guidance to employers and employees. If, however, based on its experience administering and enforcing the break time requirement and the comments received in response to this Request for Information, the Department determines that regulations are necessary, it will initiate rulemaking at that time.

This Request for Information contains the Department’s preliminary interpretations of the law’s requirements. The Department’s identification of key issues related to the law and the development of this Request for Information have been informed by the Department’s meetings and discussions with various stakeholders, including employer organizations and representatives, public health and women’s organizations, state agencies that have experience administering state laws concerning workplace lactation, and individuals and businesses that have contacted the Department with questions about the new law. The Department looks forward to continuing to receive input and invites the public to comment on the break time requirement generally and on the

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Department’s preliminary interpretations in this Request for Information. All comments will be made publicly available. DATES: Comments must be received on or before February 22, 2011. ADDRESSES: You may submit comments identified by RIN 1235–ZA00 by either of the following methods:

Federal eRulemaking Portal: http:// www.regulations.gov. Please follow the instructions for submitting comments.

Mail: Comments may be mailed to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S–3502, Washington, DC 20210.

Please submit only one copy of your comments by only one method. All submissions must include the agency name and Regulatory Information Number (RIN) identified above for this request for information. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Montaniel Navarro, FLSA Branch Chief, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S–3502, Washington, DC 20210, (202) 693–0051. SUPPLEMENTARY INFORMATION:

I. Background

The Patient Protection and Affordable Care Act (the ‘‘Affordable Care Act’’) amended section 7 of the Fair Labor Standards Act (‘‘FLSA’’), 29 U.S.C. 207, to require employers to provide nursing mothers reasonable break time and a place to express breast milk. Public Law 111–148, 124 Stat. 119, section 4207. The new requirement became effective when the President signed the Affordable Care Act on March 23, 2010. The specific requirements of the new provision are described below.

Break Time

Employers are required to provide ‘‘reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.’’ 29 U.S.C. 207(r)(1)(A). The law states that ‘‘[a]n employer shall not be required to compensate an employee receiving reasonable break time [for expressing breast milk] for any work time spent for such purpose.’’ 29 U.S.C. 207(r)(2).

Space

The law further requires employers to provide ‘‘a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an

employee to express breast milk.’’ 29 U.S.C. 207(r)(1)(B).

Undue Hardship Exemption for Employers With Fewer Than 50 Employees

Under the law, ‘‘[a]n employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.’’ 29 U.S.C. 207(r)(3).

Relationship to State Laws

The Federal law does not preempt ‘‘a State law that provides greater protections to employees than the protections provided for under [the Federal law].’’ 29 U.S.C. 207(r)(4).

Coverage Under the FLSA Nursing Mothers Provision

As mentioned above, the Affordable Care Act’s break time for nursing mothers provision is now part of the FLSA. The FLSA is the Federal law that sets minimum wage, overtime, recordkeeping, and youth employment standards. The break time for nursing mothers provision was added to section 7 of the FLSA, which sets forth premium payment obligations for overtime. The FLSA and the break time for nursing mothers provision apply only to certain employees. First, in order for an employee to be covered by the FLSA, there must be ‘‘enterprise coverage’’ or ‘‘individual coverage.’’

Enterprise Coverage

Employees who work for certain businesses or organizations (‘‘enterprises’’) are covered by the FLSA. These enterprises, which must have at least two employees, are:

(1) Those that have an annual dollar volume of sales or business done of at least $500,000; or

(2) hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies. 29 U.S.C. 203(s)(1).

Individual Coverage

Even when there is no enterprise coverage, employees are covered by the FLSA if their work regularly involves them in commerce between states (‘‘interstate commerce’’). The FLSA covers individual workers who are ‘‘engaged in commerce or in the production of goods for commerce.’’ 29 U.S.C. 206(a), 207(a). Examples of employees who are involved in

interstate commerce include those who: produce goods that will be sent out of state (such as a worker assembling components in a factory or a secretary typing letters in an office), regularly make telephone calls to persons located in other states, handle records of interstate transactions, travel to other states on their jobs, and do janitorial work in buildings where goods are produced for shipment outside the state. Also, domestic service workers such as housekeepers, full-time babysitters, and cooks are typically covered by the FLSA. 29 U.S.C. 202(a).

Coverage for Nonexempt Employees Even if an employee is covered under

the FLSA, that employee would only be entitled to break time to express breast milk if she is not exempt from section 7 of the FLSA, which sets forth the Act’s overtime pay requirements. Unless specifically exempted, the FLSA requires payment of overtime to covered employees for hours worked in excess of 40 hours per workweek at a rate not less than time and one-half of their regular rates of pay. Because the Affordable Care Act amended section 7 of the FLSA, the break time for nursing mothers provision does not apply to employees who are exempt from the provisions of section 7. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the requirements of section 7, they may be obligated to provide such breaks under state laws. The Department encourages employers to provide break time for all nursing mothers including those who may not be covered under the FLSA or who are exempt from section 7.

II. Key Issues on Which Public Comment Is Requested

In this document, the Department shares its preliminary interpretations of the law, and seeks public comment on any and all issues concerning the reasonable break time for nursing mothers law. The Department specifically seeks comment on certain issues and preliminary interpretations, as noted below.

a. Unpaid Break Time Employers are not required to

compensate nursing mothers for breaks taken for the purpose of expressing milk. 29 U.S.C. 207(r)(2). The FLSA does not require an employer to provide its employees with rest periods or breaks. However, if the employer permits short breaks, usually 20 minutes or less, the time must be counted as hours worked when determining if the FLSA requirements for payment of


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1 See ‘‘The Business Case for Breastfeeding: Steps for Creating a Breastfeeding Friendly Worksite’’, U.S. Department of Health and Human Services, Health Resources and Services Administration (2008), available at http://www.womenshealth.gov/ breastfeeding/government-programs/business-case- for-breastfeeding/index.cfm.

minimum wage and/or overtime have been satisfied. See 29 CFR 785.18. Where an employer already provides paid breaks, an employee who uses that break time to express milk must be paid in the same way that other employees are compensated for break time.

Additional time used beyond the authorized paid break time could be uncompensated. For example, if an employer provides a 20 minute paid break and a nursing employee uses that time to express milk and takes a total of 25 minutes for this purpose, the five minutes in excess of the paid break time does not have to be compensated. The FLSA’s general requirement that the employee must be completely relieved from duty applies; if a nursing employee is not completely relieved from duty during a break to express breast milk, the time must be compensated as work time. See WHD Fact Sheet #22, Hours Worked Under the FLSA at http:// www.dol.gov/whd/regs/compliance/ whdfs22.htm.

Although the FLSA does not require employers to allow employees to extend their workday (i.e., begin work earlier or end work later) to make up for unpaid break time used for expressing milk, the Department encourages employers to provide flexible scheduling for those employees who choose to make up for any unpaid break time.

b. Reasonable Break Time

Employers must provide ‘‘a reasonable break time’’ for nursing mothers to express breast milk ‘‘each time such employee has need to express the milk.’’ 29 U.S.C. 207(r)(1)(A). In implementing the requirements of this provision, employers should consider both the frequency and number of breaks a nursing mother might need and the length of time she will need to express breast milk. The information provided below is intended to help employers in this assessment so that they can develop policies that meet the requirements of the law and make sense for their work environment.

The Department has consulted with public health officials from the U.S. Department of Health and Human Services, including the Centers for Disease Control and Prevention (CDC) and the Health Resources and Services Administration, in order to better understand a nursing mother’s physiological needs and to inform our initial determinations regarding the frequency and timing of breaks to express breast milk. The information that follows stems from the guidance provided by the lactation experts at

these public health agencies.1 The frequency of breaks needed to express breast milk varies depending on factors such as the age of the baby, the number of breast feedings in the baby’s normal daily schedule, whether the baby is eating solid food, and other factors. In the early months of life a baby may need as many as 8 to 12 feedings per day. This means that a nursing baby needs food every two to three hours. A nursing mother produces milk on a constant basis. If the baby does not take the milk directly from the mother, it must be removed by a pump about as frequently as the baby usually nurses. If a mother is unable to express breast milk while she is away from her baby, she may experience a drop in her milk supply which could result in her being unable to continue nursing her child. The inability to express milk may also lead to an infection. Depending on the nursing mother’s work schedule, it may be that the frequency of breaks needed tracks regular breaks and lunch periods, but this will not always be the case. As the child grows and begins to consume solid foods, typically around six months of age, the frequency of nursing often decreases, and the need for a nursing mother to take breaks to express breast milk may also gradually diminish.

The Department expects that nursing mothers typically will need breaks to express milk two to three times during an eight hour shift. Longer shifts will require additional breaks to express milk.

The length of time necessary to express milk also varies from woman to woman. The act of expressing breast milk alone typically takes about 15 to 20 minutes, but there are many other factors that will determine a reasonable break time. Employers should consider these factors when determining how they will provide both reasonable break time and space for nursing mothers. For example, factors such as the location of the space and the amenities nearby (e.g., proximity to employee’s work area, availability of sink for washing, location of refrigerator or personal storage for the milk, etc.) can affect the length of break an employee will need to express milk. Some of the factors employers should consider in determining whether the time needed for a nursing employee to express milk is ‘‘reasonable’’ include:

(i) The time it takes to walk to and from the lactation space and the wait, if any, to use the space;

(ii) Whether the employee has to retrieve her pump and other supplies from another location;

(iii) Whether the employee will need to unpack and set up her own pump or if a pump is provided for her;

(iv) The efficiency of the pump used to express milk (employees using different pumps may require more or less time);

(v) Whether there is a sink and running water nearby for the employee to use to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or what additional steps she will need to take to maintain the cleanliness of the pump attachments;

(vi) The time it takes for the employee to store her milk either in a refrigerator or personal cooler.

Nursing employees are encouraged to discuss with their employers what they expect they will need in terms of frequency and timing of breaks to express milk. Employers are encouraged to discuss with nursing employees the location and availability of space for expressing milk as that will affect the time required for the breaks. These discussions will help employers and employees to develop shared expectations and an understanding of what will constitute ‘‘a reasonable break time’’ and how to incorporate the breaks into the work period.

In assessing the reasonableness of break time provided to a nursing employee, the Department will consider all the steps reasonably necessary to express breast milk, not merely the time required to express the milk itself.

c. Space for Expressing Breast Milk The break time for nursing mothers

provision requires that covered employers provide ‘‘a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.’’ 29 U.S.C. 207(r)(1)(B). The Department’s initial interpretation of the requirement that the space be ‘‘shielded from view and free from intrusion’’ is that it requires employers where practicable to make a room (either private or with partitions for use by multiple nursing employees) available for use by employees taking breaks to express milk. Where it is not practicable for an employer to provide a room, the requirement can be met by creating a space with partitions or curtains. Any windows in the designated room or


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2 The CDC Web site contains recommended guidelines for the safe preparation and storage of expressed breast milk. See http://www.cdc.gov/ breastfeeding/recommendations/ handling_breastmilk.htm.

space should be covered to ensure the space is ‘‘shielded from view.’’ With any space provided for expressing milk, the employer must ensure the employee’s privacy through means such as signs that designate when the space is in use, or a lock on the door.

The employer is not obligated to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient provided that the space is shielded from view, and free from intrusion from coworkers and the public.

While a bathroom, even if it offers privacy, does not meet the requirements of the statute, an anteroom or lounge area connected to the bathroom may be sufficient to meet the requirements of the law. For example, if there is a wall with a door separating the lounge area from the bathroom, and if there is a space for nursing mothers within the lounge that is ‘‘shielded from view’’ and ‘‘free from intrusion,’’ this would likely meet the requirements of the law. The Department would appreciate comments on whether and under what circumstances rooms that adjoin bathrooms could be compliant with the law.

Locker rooms that function as changing rooms (i.e., for changing in and out of uniforms) may also be adequate as long as there is a separate space designated within the room for expressing milk that is shielded from view and free from intrusion. The Department does not believe, however, that a locker room where there is not sufficient differentiation between the toilet area and the space reserved for expressing breast milk would meet the requirements of the law because it presents similar health and sanitation concerns as a bathroom. There is concern that locker rooms may not be appropriate because such wet environments are at risk of being contaminated with pathogenic bacteria and have been linked to outbreaks of methicillin-resistant Staphylococcus aureus (MRSA). The Department would appreciate comments on whether and under what circumstances locker rooms could be compliant with the law.

Because the statute requires employers to provide break time ‘‘each time such employee has need to express the milk,’’ employers should consider the number of nursing mothers employed and their work schedules to determine the location and number of spaces to designate or create. As described above, the amount of time that is reasonable for a nursing

employee to express milk is dependent in part on her ability to access a suitable space. In order to accommodate significant numbers of nursing mothers, some large employers may choose to include nursing mothers’ rooms in their floor plans and provide a room on multiple floors of their facility or in an on-site health facility. Other employers may provide a large room with privacy screens so that the room may be used simultaneously by several nursing employees. Where the designated space is so far from the employee’s work area as to make it impractical for the employee to take breaks to express milk, or where the number of nursing employees needing to use the space either prevents an employee from taking breaks to express milk or necessitates prolonged waiting time, the Department will not consider the employer to be in compliance with the requirement to provide reasonable break time.

In order to be a functional space ‘‘that may be used by an employee to express breast milk,’’ at a minimum, a space must contain a place for the nursing mother to sit, and a flat surface, other than the floor, on which to place the pump. Ideally, the space will have access to electricity, so that a nursing mother can plug in an electric pump rather than use a pump with battery power. There are a range of additional features that some employers have included when providing spaces for their employees to use to express breast milk, such as sinks within or nearby the room for washing hands and cleaning pump attachments, and refrigerators within or nearby the room for storing expressed milk. While such additional features are not required, the Department notes that their provision may decrease the amount of break time needed by nursing employees to express milk.

The Department interprets an employee’s right to express milk for a nursing child to include the ability to safely store the milk for her child.2 While employers are not required to provide refrigeration options for nursing mothers for the purpose of storing expressed milk, they must allow a nursing mother to bring a pump and insulated food container to work for expressing and storing the milk and ensure there is a place where she can store the pump and insulated food container while she is at work. This is similar to providing employees with a place to store lunch or meals that they

bring to work in insulated food containers. In many workplaces the nursing mother will be able to keep the pump and insulated container near her work space, but in some settings it may be necessary to have a separate place for her to stow the pump and insulated food container (e.g., a locker, closet, cabinet, or other space where the pump and container will not be disturbed or contaminated).

The Department is aware that there are many work settings that are not in office buildings, and that this can pose unique challenges to providing an adequate space for nursing mothers to express milk. For example, there are nursing employees who work in retail settings, quick service food stores and restaurants, construction or outdoor work sites, factories, or in other non- office building settings. Some of these workplaces may have limited space available to convert into a designated space to express breast milk. In order to meet the obligations of the law, employers need not create a permanent, dedicated space for expressing milk.

The Department is aware that many such employers have found ways to provide break time and space for nursing employees even though there was no readily available ‘‘unused’’ space. For example, in restaurants and small retail settings, employers have made spaces normally designated for other purposes available when needed by the nursing mother. Malls or retail shopping centers have designated shared space to be used by employees of the various tenant businesses. The Department would appreciate comments that address the conditions under which spaces such as manager’s offices, storage spaces, utility closets, and other such spaces normally used for other purposes could be considered adequate spaces for use by nursing mothers under the statute. In addition, the Department solicits comments on the kinds of shared space arrangements that would be acceptable under the law.

Similarly, the Department would appreciate comments that address how employers can provide adequate break time and space for nursing employees who are not in a fixed place during a work shift (e.g., bus drivers, mail or parcel delivery workers, law enforcement officers, emergency medical technicians, etc.). In general, the Department would appreciate comments that describe creative solutions to providing break time and space for nursing mothers so that we can share these examples more broadly.

Employers have also asked the Department what their obligation is to provide a space when their nursing


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employee is located at a client’s worksite, rather than the employer’s worksite. It is the Department’s view that the statutory language makes it the obligation of the employer to provide the space, regardless of where the employee is located. In situations where the employee is off-site, the Department recommends that the employer arrange with the client to allow the employee to use a space at the client’s site for the purpose of expressing milk. It may be that the client’s worksite already has a designated space for expressing milk for its own employees that can be used by the contract employee. Where a joint employment relationship exists between the employer and client in relation to the nursing employee, both parties would be viewed as having the obligation to provide reasonable break time and an appropriate space in which to express milk. The Department would appreciate comments and recommendations as to how employers can meet their obligations under the law to provide break time and space for nursing mother employees who are working at other sites.

d. Notice In order to facilitate an employer’s

ability to provide appropriate space for expressing milk, the Department encourages nursing employees to give employers advance notice of their intent to take breaks at work to express milk. The Department believes that a simple conversation between an employee and a supervisor, manager, or human resources representative about the employee’s intent to take breaks for the purpose of expressing breast milk would facilitate an employer’s ability to make arrangements to comply with the law before the nursing mother returns to work. The Department solicits comments about how best to address notice issues consistent with the language and purpose of the law, bearing in mind that the employer must provide the break time and lactation space ‘‘each time such employee has need to express the milk.’’ 29 U.S.C. 207(r)(1)(A).

The Department notes that an employer may ask an expectant mother if she intends to take breaks to express milk while at work. Doing so informs employees of their rights under the law and allows the employer the opportunity to make any necessary adjustments to comply with the law.

e. Undue Hardship Exemption The break time for nursing mothers

statutory provision provides an undue hardship exemption that is only available for employers with fewer than

50 employees that meet certain conditions, as further described below. Employers with 50 or more employees must comply with the law without exception. 29 U.S.C. 207(r)(3). Unlike the Family Medical Leave Act, in which Congress specifically excluded from coverage worksites where an employer employs less than 50 employees or where the total number of employees employed by that employer within 75 miles of a particular worksite is less than 50 employees, Congress did not provide such specifications for determining the application of the break time for nursing mothers provision to small employers or worksites with few employees. The statutory language of section 7(r)(3) sets forth the number of employees without further specifications such as the number of employees per worksite, or in a geographic area, for example. Therefore, the Department has concluded that covered employers must count all employees who work for the employer, including all work sites, when determining whether this exemption might apply.

Because the nursing mothers break time requirements were added to the FLSA, the Department will apply the FLSA definition of ‘‘employee’’ in section 3(e)(1) when counting employees. Thus, ‘‘any individual employed by an employer’’ must be counted, including full-time employees, part-time employees, and any other individuals who meet the FLSA definition of an employee.

In addition, the Department intends to use the FLSA workweek standard for purposes of counting whether the employer has fewer than 50 employees. See 29 CFR 778.105. The Department recognizes that some employers’ workforces fluctuate from week to week, and that some businesses experience variation in workforce size over the course of time, for myriad reasons. However, the Department believes it is necessary to fix the workweek at which the number of employees are counted for purposes of the undue hardship exemption because a nursing mother necessarily relies on the availability of the breaks, and fluctuation in the ability to express breast milk at work may cause the woman to lose the ability to produce sufficient milk for her child, frustrating the purpose of the law. The Department solicits comments as to the appropriate point at which to count the number of employees for purposes of determining whether the employer may assert an undue hardship defense. The Department is considering whether the number of employees should be counted in the workweek in which the employee

notifies the employer that she intends to take breaks to express milk, in the first workweek the employee intends to utilize the breaks and the space to express milk at work, or at some other point. Further, the Department believes that an employer that has previously claimed the undue hardship exemption will no longer be eligible for the exemption if the number of employees employed by the employer rises to 50 or more at the point determined above. The Department solicits comments on this interpretation as well.

The employer bears the burden of proof that compliance with the nursing mothers break time provision would be an undue hardship. In addition to demonstrating that the employer employs fewer than 50 employees, an employer that wishes to avail itself of the exemption must show that compliance would cause the employer ‘‘significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.’’ 29 U.S.C. 207(r)(3). Because these factors and the number of employees employed by a particular employer will vary depending on the circumstances at the time the request for break time is made, the Department will not grant prospective undue hardship exemptions to employers. The undue hardship exemption will operate as an affirmative defense raised by an employer that seeks to demonstrate to the Department why it is unable to accommodate a particular nursing employee under the law. For example, if the Department were investigating a complaint made by a nursing mother who claims her employer is not complying with the law, the employer would have an opportunity at that time to demonstrate to the Department why it qualifies in that instance for an undue hardship exemption based on the statutory factors.

Because the law only requires space and time for unpaid breaks for one year after a child’s birth, and the employer must be able to demonstrate ‘‘significant’’ difficulty or expense, the Department believes that this is a stringent standard that will result in employers being able to avail themselves of the exemption only in limited circumstances. Employers with fewer than 50 employees may not presume that having a smaller workforce by itself sufficiently demonstrates that compliance would pose a significant difficulty or expense; the difficulty or expense must be shown in light of the factors listed in the statute. The Department expects and encourages such small employers to


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3 The Equal Employment Opportunity Commission (EEOC) should be consulted for further information about Title VII. See http:// www.eeoc.gov.

approach compliance creatively and constructively, and will evaluate each undue hardship claim by applying the statutory factors to the particular factual circumstances of a case. The Department solicits comments on whether this undue hardship standard, which is very similar to the undue hardship standard in the Americans With Disabilities Act, 42 U.S.C. 12111(10) (‘‘significant difficulty or expense’’ when considered in light of factors such as financial resources, size, type of operation and workforce structure), should be interpreted in the same way the undue hardship defense has been interpreted under that law.

f. Relationship to the Family Medical Leave Act

The Department has received several inquiries concerning the relationship of the nursing mothers break time provision to the Family Medical Leave Act (‘‘FMLA’’). The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. See 29 U.S.C. 2601 et seq. Among the qualifying reasons for taking FMLA leave are to care for a newborn child within one year of birth and for the employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job. FMLA protections do not extend to leave taken for reasons not covered by the Act. See WHD Fact Sheet # 28 The Family and Medical Leave Act of 1993 at http:// www.dol.gov/whd/regs/compliance/ whdfs28.pdf.

The Department does not believe that breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee’s FMLA leave entitlement. While employees are entitled to take FMLA leave to bond with a newborn child, the Department does not consider expressing milk at work to constitute bonding with or caring for a newborn child. See 29 CFR 825.120. Also, while an eligible employee may take FMLA leave due to her own serious health condition, the Department does not believe that expressing milk will typically be associated with a serious health condition under the FMLA. See 29 CFR 825.113–115.

g. Enforcement The Department’s Wage and Hour

Division (WHD) is charged with administering and enforcing the FLSA, which includes the new break time for nursing mothers provision. The enforcement of the FLSA is carried out by WHD investigators. As the WHD’s

authorized representatives, they conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine compliance with the law. 29 U.S.C. 211. Where violations are found, they also may recommend changes in employment practices to bring an employer into compliance.

If an employee would like to file a complaint because she believes her employer has violated the break time for nursing mothers requirement under the FLSA, she should call the toll-free WHD number 1–866–487–9243 and she will be directed to the nearest WHD office for assistance. The WHD Web site at http://www.dol.gov/wecanhelp/ howtofilecomplaint.htm provides basic information about how to file a complaint and how the WHD will investigate complaints.

To the extent possible, WHD intends to give priority consideration to complaints received by the agency alleging that an employer is failing to provide break time and a space to express milk as required by law to allow expeditious resolution of the matter in order to preserve the employee’s ability to continue to breastfeed and express milk for her child.

Section 7(r) of the FLSA does not specify any penalties if an employer is found to have violated the break time for nursing mothers requirement. In most instances, an employee may only bring an action for unpaid minimum wages or unpaid overtime compensation and an additional equal amount in liquidated damages. 29 U.S.C. 216(b). Because employers are not required to compensate employees for break time to express breast milk, in most circumstances there will not be any unpaid minimum wage or overtime compensation associated with the failure to provide such breaks.

If an employer refuses to comply with the requirements of section 7(r), however, the Department may seek injunctive relief in federal district court, and may obtain reinstatement and lost wages for the employee. 29 U.S.C. 217. For example, if an employer terminates a nursing mother employee because she takes breaks to express milk that she is entitled to under the FLSA, or because she has informed her employer that she intends to take breaks to express breast milk, this would be considered a violation of 29 U.S.C. 15(a)(2) (i.e., an unlawful violation of section 7(r)). In such a case, the Department could pursue injunctive relief in federal district court and seek reinstatement and lost wages for the employee. Additionally, if an employee is ‘‘discharged or in any other manner

discriminated against’’ because she has filed a complaint or caused to be instituted any proceeding regarding break time for expressing breast milk, the employee may file a retaliation complaint with the Department or she may file a private cause of action seeking reinstatement, lost wages, and other appropriate remedies. 29 U.S.C. 215(a)(3), 216(b).

If an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII of the Civil Rights Act of 1964.3

h. Compliance Assistance The Department is determining how

best to provide assistance to employees as well as to employers seeking to comply with the new break time for nursing mothers requirement. The Department has established a website that provides a compilation of resources that employers, employees, lactation consultants, and other interested stakeholders might find useful as they seek to develop workplace lactation programs. See http://www.dol.gov/whd/ nursingmothers. We are interested generally in hearing from the public about the kinds of information and resources that would be most helpful to employers and employees as they seek to comply with the requirements of the law and to exercise the break time right provided under the law.

i. Additional Resources Employers and employees are

encouraged to review information issued by the Department of Health and Human Services (HHS) concerning workplace lactation programs. The Health Resources and Services Administration within HHS has published a resource kit, The Business Case for Breastfeeding, which includes materials for management, human resource managers, and others involved in implementing on-site programs for lactation support and may be accessed at http://www.womenshealth.gov/ breastfeeding/government-programs/ business-case-for-breastfeeding/ index.cfm. The Centers for Disease Control and Prevention within HHS has a Healthier Worksite Initiative that offers a toolkit to help employers establish a comprehensive lactation support program for nursing mothers at the worksite. The toolkit is available at http://www.cdc.gov/nccdphp/dnpao/


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http://www.dol.gov/wecanhelp/howtofilecomplaint.htm

http://www.dol.gov/wecanhelp/howtofilecomplaint.htm

http://www.dol.gov/whd/nursingmothers


http://www.cdc.gov/nccdphp/dnpao/

http://www.eeoc.gov

http://www.eeoc.gov


hwi/toolkits/lactation/index.htm. Several non-profit organizations and state breastfeeding coalitions also provide resources to help employers develop lactation policies and programs. In addition, employers may wish to review the Equal Employment Opportunity Commission’s ‘‘Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities’’ which is available at http://www.eeoc.gov/policy/ docs/caregiving.html.

III. Electronic Access

An electronic version of this Request for Information is available on the Internet at http://www.regulations.gov and http://www.dol.gov/whd/ nursingmothers.

Nancy J. Leppink, Deputy Administrator, Wage and Hour Division. [FR Doc. 2010–31959 Filed 12–20–10; 8:45 am]


NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[Notice: (10–162)]

Notice of Information Collection

AGENCY: National Aeronautics and Space Administration (NASA). ACTION: Notice of information collection.

SUMMARY: The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)). DATES: All comments should be submitted within 30 calendar days from the date of this publication. ADDRESSES: All comments should be addressed to Lori Parker, National Aeronautics and Space Administration, Washington, DC 20546–0001. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Lori Parker, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JF000, Washington, DC 20546, (202) 358–1351, [email protected].

SUPPLEMENTARY INFORMATION:

I. Abstract

NASA is requesting a Generic Clearance for data collection to integrate program planning, program accountability, management, and monitoring information pertaining to the NASA’s education and outreach efforts. NASA’s education and outreach portfolio includes efforts that span various organizational units within NASA.

II. Method of Collection

Electronic.

III. Data

Title: NASA Education Generic Clearance.

OMB Number: 2700–xxxx. Type of review: Regular. Affected Public: Business or other for-

profit; not-for-profit institutions; individuals or households.

Number of Respondents: 2,236,000. Responses per Respondent: 1. Annual Responses: 2,444,000. Hours per Request: 0.15–.5 hour. Annual Burden Hours: 245,333. Frequency of Report: On occasion,

quarterly, semi-annually, annually.

IV. Request for Comments

Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA’s estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.

Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.

Lori Parker, NASA PRA Clearance Officer. [FR Doc. 2010–31955 Filed 12–20–10; 8:45 am]


NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[Notice: (10–165)]

Notice of Information Collection

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Notice of information collection.

SUMMARY: The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)). DATES: All comments should be submitted within 30 calendar days from the date of this publication. ADDRESSES: All comments should be addressed to Lori Parker, National Aeronautics and Space Administration, Washington, DC 20546–0001. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Lori Parker, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JF0000, Washington, DC 20546, (202) 358–1351, [email protected].

SUPPLEMENTARY INFORMATION:

I. Abstract

As required in Section 305(b) of the National Aeronautics and Space Act of 1958 and the NASA Supplement to the Federal Acquisition Regulation, NASA R&D contracts require contractor/ recipient reporting of new technologies to NASA using NASA eNTRe system for electronic submissions and NASA Form 1679 for paper submissions.

II. Method of Collection

NASA will utilize a web-base on-line form to collect this information. Approximately 65 per cent of the responses will be collected electronically.

III. Data

Title: AST–Technology Utilization. OMB Number: 2700–0009. Type of review: Regular. Affected Public: Business or other for-

profit and not-for profit institutions. Estimated Number of Respondents:

1283. Estimated Time per Response: 1 hour

for manual responses and 0.75 hour for electronic responses.

Estimated Total Annual Burden Hours: 1075.

Estimated Total Annual Cost: $0.

IV. Request for Comments

Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance


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http://www.eeoc.gov/policy/docs/caregiving.html

http://www.eeoc.gov/policy/docs/caregiving.html




mailto:[email protected]


RUBY J. KRAJICK UNITED STATES DISTRICT COURT WWW.NYSD.USCOURTS.GOV

CLERK OF COURT SOUTHERN DISTRICT OF NEW YORK 500 PEARL STREET, NEW YORK, NY 10007

300 QUARROPAS STREET, WHITE PLAINS, NY 10601

NOTICE TO THE BAR

ALTERNATIVE DISPUTE RESOLUTION

CASES ASSIGNED TO MEDIATION BY AUTOMATIC REFERRAL UNDER LOCAL RULE 83.12

Effective January 3, 2011, employment discrimination cases, except FLSA cases, will be designated for automatic referral under the Court’s existing Alternative Dispute Resolution (“ADR”) program of mediation. ASSIGNMENT TO MEDIATOR

The Mediation Supervisor shall assign the next available mediator from the list of individuals certified as mediators and notify the mediator and the parties of the assignment within ten (10) days of the receipt by the Mediation Supervisor of the Mediation Order either from the Clerk of Court or from the assigned Judge. When all counsel for the parties believe a mediator with expertise in a particular field would be preferred, they shall within five (5) days of the Mediation Order notify the Mediation Supervisor, who within ten (10) days of the parties' request will, if available, appoint the next mediator with expertise in that field.

CORRESPONDENCE TO MEDIATION DEPARTMENT

Mediators, the Bar, and the public should address all mediation correspondence to the following e-mail address:

[email protected]

MEDIATION SCHEDULING

The mediator shall schedule the first mediation session in a case within thirty (30) days of the assignment of the mediator by the Mediation Supervisor. In the event that the mediation cannot begin within the time set forth herein, the assigned mediator shall promptly notify the Mediation Supervisor of the date by which the mediation will begin and the reason for the delay.

MEDIATION SESSIONS AND LOCATIONS

The first mediation session must be held in the Court's "ADR Center." The mediator, in consultation with counsel for the parties, shall decide the location of subsequent mediation sessions.

Please reference the Court=s Local Civil Rules on the Court=s website (www.nysd.uscourts.gov)

http://www.nysd.uscourts.gov/



Management Alert

At 10 a.m. EST today, the U.S. Supreme Court announced its decision to accept review of Wal-Mart’s petition for certiorari

in Dukes, et al. v. Wal-Mart Stores, Inc. The 6 to 5 en banc decision of the U.S. Court of Appeals for the Ninth Circuit in San

Francisco – reported at 603 F.3d 571 (9th Cir. 2010) – affirmed an earlier class certification order in the largest employment

discrimination class action ever certified. The Ninth Circuit upheld an earlier panel decision certifying a class action gender

discrimination lawsuit challenging Wal-Mart’s pay and promotions practices. The full Ninth Circuit ruled that the U.S.

District Court for the Northern District of California did not abuse its discretion in finding that the large and diverse class –

encompassing approximately 1.5 million female employees, both salaried and hourly with a range of positions, who are or

were employed at one or more of company’s 3,400 stores across the country – was united by a complex of company-wide

discriminatory practices against women where plaintiffs presented expert opinions, factual evidence, statistical evidence,

and anecdotal evidence showing a corporate policy and common pattern of discrimination imposed on female employees

nationwide.

The petition by Wal-Mart to the Supreme Court sought review of the following questions: (1) Whether claims for monetary

relief can be certified under Federal Rule of Civil Procedure 23(b)(2) and, if so, under what circumstances; and (2) whether

the order certifying a class conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the

Rules Enabling Act, and Federal Rule of Civil Procedure 23. In granting the petition, the Supreme Court accepted review of

the first question, declined review of the second question, and directed the parties to address the issue of “whether the class

certification ordered under Rule 23 (b)(2) was consistent with Rule 23 (a).” While not unprecedented, the Supreme Court’s

direction to address this issue likely signals that it intends to review the underpinnings of the expansive class certified in the

Dukes case and the extent to which the pursuit of punitive damages impact the certification calculus.

Given a typical schedule for briefing and argument at the Supreme Court, a ruling on these issues is likely by June of 2011.

In the meantime, the 9th Circuit decision is significant for employers on many levels.

Dukes Provides A Roadmap For Future Class Actions

The Ninth Circuit’s decision changed the landscape for employment class actions and provides a roadmap for the plaintiffs’

bar to file colossal employment class actions. Employers are therefore challenged to review and reinforce (or implement)

creative policies and practices (in addition to litigation strategies) to position themselves against class certification

challenging a company’s pay and promotion and other employment practices.

• December6,2010

The Supreme Court Accepts Certiorari In Dukes v. Wal-Mart And Will Decide Key Class Certification Issues In 2011

Management Alert

The Supreme Will Likely Clarify The Legal Standards For Certification Of Employment Discrimination Class ActionsThe Supreme Court’s decision to review Dukes means that employers can expect clarification of Rule 23 certification

standards in employment discrimination class actions overall. In addition, Dukes could harmonize the Supreme Court’s

decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) (prohibiting a “preliminary inquiry into the merits of a suit

to determine whether it may be maintained as a class action”) with Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161

(1982) (requiring a “rigorous analysis” to ensure that the prerequisites of Rule 23(a) have been satisfied). The key difference

between Eisen and Falcon is the purpose for which a District Court analyzes the underlying facts in deciding whether to

certify a class action – whether to resolve a merits issue unnecessarily, or to determine whether, for example, plaintiffs have

demonstrated questions of law or fact common to their proposed class.

The Issues Of Class-Wide Punitive Damages TheoriesThe Ninth Circuit’s decision in Dukes remanded to the District Court the issue of whether certification under Rule 23(b)(2)

or Rule 23(b)(3) is appropriate for punitive damages claims. While Dukes did not rule on the merits of plaintiffs’ claim for

punitive damages, it provided guidance for analyzing the propriety of such claims under Rule 23(b)(2), and noted that hybrid

certification of Rule 23(b)(2) and Rule 23(b)(3) sub-classes in a single action “is worth consideration.” This issue is far from

theoretical, however, because punitive damages affect leverage and exposure for employers subject to a class action.

Due Process Rights In Class Actions And The Role Of ExpertsThe Ninth Circuit in Dukes noted a range of permissible means to manage a class-action trial in accordance with due

process and determined that neither Title VII nor due process mandates individual damages proceedings. This is an

important holding for employers. It eliminates individual-by-individual defenses stemming from personnel decision-making

by employers and turns class actions into statistical exercises. It is also significant because the Ninth Circuit in Dukes

rejected the notion that a full Daubert analysis – from Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) – is

required at class certification, suggesting that Daubert does not have the same application at class certification as it does at

trial. If it were required, a District Court would need to resolve challenges to an expert’s qualifications, as well as the reliability

of testimony provided by the expert, to determine whether it relevant to establishing any of the Rule 23 requirements for class

certification.

The net effect is that plaintiffs are able to certify more cases, and gain the leverage that comes with a certification order.

The Supreme Court’s disposition of this issue has enormous consequences for employers in approaching the defense and

litigation of class action claims.

Management Alert

Attorney Advertising. This Management Alert is a periodical publication of Seyfarth Shaw LLP and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.) © 2010 Seyfarth Shaw LLP. All rights reserved.

www.seyfarth.com

The Bottom LineEmployers will hear much more about the Dukes case in the weeks and months ahead. The Supreme Court’s ruling may well

be one of the most important employment discrimination class action decisions in decades, and may change the workplace

class action landscape permanently.

For a thorough analysis of the Ninth Circuit’s decision in Dukes, view the BNA article from the Class Action Reporter.

For more information, please contact the Seyfarth attorney with whom you work, or any Labor and Employment attorney on our

website.

http://www.seyfarth.com/dir_docs/publications/BNA1110.pdf

http://www.seyfarth.com/index.cfm/fuseaction/practice_area.practice_area_detail/object_id/a7148046-237d-4e08-9e8e-e7bc6a0fb969/LaborEmployment.cfm


One Minute Memo®

The Equal Employment Opportunity Commission (“EEOC”) recently announced its approval of long-awaited final regulations

under the ADA Amendments Act (“ADAAA”). EEOC has requested expedited review of the proposed regulations by the Office

of Management and Budget. Thus, the new regulations may well issue before the usual 90-day OMB review deadline.

Among the subjects likely to be addressed in EEOC’s regulations are:

(i) whether “substantially limited” in a major life activity “should not require extensive analysis” and often may be

determined using a “common-sense standard, without resorting to scientific or medical evidence”;

(ii) whether a “temporary” impairment (e.g., less than 6 months) can be substantially limiting -- because the

ADAAA does not set a durational minimum;

(iii) whether a number of specified conditions will “consistently meet” the definition of disability, including cancer,

cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis, muscular dystrophy, major depression,

bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia;

(iv) whether employers must reasonably accommodate those with a “record of” disability absent undue hardship;

and

(v) whether ADA “regarded as” analysis prohibits action against an individual because of symptoms related to

an impairment or because of mitigating measures such as medication, even if the employer is unaware of the

underlying impairment.

See Seyfarth Shaw Management Alert dated 09/30/09 (“EEOC Issues Proposed Regulations Under the ADA …”).

Regardless of final regulation particulars, the new rules will greatly expand the meaning of “disability” under the ADAAA. In

enacting the ADAAA, Congress made clear that employers should focus on reasonable accommodation – as opposed to

whether the individual seeking accommodation is disabled. The forthcoming regulations will likely emphasize this as well.

For further ADAAA updates, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on

our website.

• January11,2011

Final Disability Regulations Coming Soon

Attorney Advertising. This One Minute Memo is a periodical publication of Seyfarth Shaw LLP and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.) © 2011 Seyfarth Shaw LLP. All rights reserved.

http://www.seyfarth.com/index.cfm/fuseaction/publications.publications_detail/object_id/afaa8d86-161e-4ad6-b1ee-4a96577f5f87/EEOCIssuesProposedRegulationsUndertheAmericanswithDisabilitiesActInvitesPublicCommentbyNovember232009.cfm


One Minute Memo®

Yesterday, the National Labor Relations Board (“NLRB”) announced that it is proposing a rule requiring employers to notify

their employees of their right under the National Labor Relations Act (“Act”) to join a union or to engage in other activities

protected by the Act.

The proposed rule would obligate private sector employers whose workplaces are covered by the Act (i.e., the vast majority

of employers) to post an employee rights notice where other workplace notices are typically posted. If an employer

communicates with employees primarily by email or other electronic means, the notice would need to be posted electronically

as well. The notice would be available from the NLRB’s regional offices and could be downloaded from the NLRB website.

The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. According to

the NLRB’s press release, it states that employees have the right to “act together to improve wages and working conditions,

to form, join, and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities.” It

provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions

or complaints.

The rule is likely to increase NLRB litigation and make it more difficult for employers to defend against unfair labor practices.

Not only would the proposed rule make an employer’s failure to appropriately post the employee rights notice an unfair labor

practice itself (in violation of Section 8(a)(1) of the Act), a failure to post would toll the six month statute of limitations period

on other unfair labor practices, and a knowing failure to post could be used as evidence of an employer’s union animus in

anti-union discrimination and other NLRB litigation.

Emblematic of the politics of this initiative, the rule was originally proposed in 1993, but only now is there a majority of NLRB

Members favoring its implementation. The majority of the current NLRB (Chairman Wilma Liebman and Members Mark

Pearce and Craig Becker) are all former union attorneys. Republican Member Brian Hayes dissented from the issuance of

the proposed rulemaking, asserting that the NLRB “lacks the statutory authority to promulgate or enforce th[is] type of rule[.]”

• December22,2010

NLRB Proposes Rule Requiring Employers To Notify Employees Of Their Right To Join A Union

One Minute Memo®

www.seyfarth.com

Attorney Advertising. This One Minute Memo is a periodical publication of Seyfarth Shaw LLP and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.) © 2010 Seyfarth Shaw LLP. All rights reserved.

The proposed rule will be published in the Federal Register and public comments may be filed within 60 days of publication.

A copy of the proposed rule can be found here. It is widely presumed that the NLRB will issue its final rule and require

compliance as soon as practicable after the public comment period ends.

We will inform you of any significant future developments regarding the NLRB’s rule.


website.

http://www.seyfarth.com

http://www.ofr.gov/OFRUpload/OFRData/2010-32019_PI.pdf


Management Alert

Title II of the Genetic Information Nondiscrimination Act (GINA), which took effect on November 21, 2009, prohibits employers

from discriminating against employees and applicants based on genetic information, regulates employers’ collection of

genetic information and requires employers to keep genetic information confidential. On November 9, 2010, the Equal

Employment Opportunity Commission (EEOC) issued final regulations to Title II of GINA. The EEOC’s final regulations adopt

a number of Seyfarth Shaw’s comments to the proposed regulations, which can be accessed here.

“Genetic Information” And “Genetic Tests” Are Expansively Defined

The regulations broadly define “genetic information” to include: the genetic tests of an individual or his or her family

members; an individual’s family medical history; an individual’s request for or receipt of genetic services or participation in

clinical research that includes genetic services by the individual or his or her family members; and the genetic information of

a fetus carried by an individual or a pregnant woman who is a family member of the individual, and the genetic information of

any embryo legally held by the individual or family member using an assisted reproductive technology.

The regulations also list tests that qualify as “genetic tests” (e.g., carrier screening for adults using genetic analysis to

determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy or fragile X syndrome

in future offspring; tests to determine if someone has the BRCA1 or BRCA2 variant evidencing a predisposition to breast

cancer; and DNA testing that reveals family relationships, such as paternity). The regulations also identify tests that do not

qualify as genetic tests (e.g., complete blood counts, cholesterol tests and liver function tests).

Limits On Acquiring Genetic Information

In addition, the regulations augment GINA’s general prohibition on collecting genetic information. For example, they prohibit

employers from: conducting Internet searches aimed at or likely to result in the acquisition of genetic information; actively

listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic

information; and making requests for information about an individual’s current health status in ways that are likely to result in

the disclosure of genetic information.

However, the regulations provide that employers do not run afoul of GINA by inadvertently obtaining genetic information.

This exception contemplates situations where an employer inadvertently acquires genetic information by overhearing a

conversation “at the water cooler” involving genetic information or receiving responses to an ordinary expression of concern

• November9,2010

EEOC Issues Final Regulations To Title II Of GINA

http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480970cf1

Management Alert

about an employee’s health. But an employer may not be able to avail itself of this exception where it follows-up on the

disclosures with probing questions likely to elicit genetic information.

Significantly, moreover, the regulations provide that an employer needs to direct an individual and/or healthcare provider not

to provide genetic information in response to a request for medical information in order to assert that its receipt of genetic

information in response to the request was inadvertent. In this regard, the regulations provide the following “safe harbor”

language that employers may use in connection with requests for medical information:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities

covered by GINA Title II from requesting or requiring genetic information of an individual or family

member of the individual, except as specifically allowed by this law. To comply with this law, we are

asking that you not provide any genetic information when responding to this request for medical

information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical

history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an

individual’s family member sought or received genetic services, and genetic information of a fetus

carried by an individual or an individual’s family member or an embryo lawfully held by an individual

or family member receiving assistive reproductive services.”

Another exception to GINA’s general bar on employer acquisition of genetic information exists for voluntary wellness

programs. However, employers using wellness programs may not require an individual to provide genetic information or

penalize an individual who declines to provide it. Moreover, an employer may not offer a financial inducement to specifically

provide genetic information, but may offer financial inducements for completing health risk assessments that include

questions involving genetic information so long as the employer makes it clear that the inducement will be made available

whether or not the employee answers the questions regarding genetic information. (The regulations provide examples to

illustrate how this provision operates.)

Further, to ensure that an individual’s decision to provide genetic information in connection with a wellness program is

voluntary, employers must use authorization forms that: are written in a manner that the individual is reasonably likely

to understand; describes the type of genetic information being obtained and the purposes for which it will be used; and

describes the restrictions on disclosure of genetic information. In addition, genetic information obtained through a wellness

program only may be disclosed to the employer in aggregate terms that do not disclose the identity of specific individuals.

Personnel Files

The regulations do not require employers to remove genetic information from personnel files where such information was

placed in the files before November 21, 2009. As a matter of prudence, however, employers should remove all genetic

information from personnel files and place it in separate, confidential medical files. Genetic information may be maintained in

the same file as other confidential medical information subject to Section 102(d)(3)(B) of the Americans with Disabilities Act

(ADA).

Management Alert


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Distinguishing GINA from the ADA/ADAAA

There is a possibility that employees who believe they were discriminated against on account of a physical condition that has

manifested will file errant claims under GINA (as opposed to or in addition to the ADA). In an apparent attempt to minimize

this risk, the regulations provide that an employer does not violate GINA based on its use, disclosure or acquisition of

medical information that is not genetic information about a manifested disease, disorder or pathological condition even if the

disease, disorder or pathological condition has a genetic basis or component. In this vein, the regulations further clarify that

the ADA governs the acquisition, disclosure and use of such medical information.

Best Practices

In light of the risks that these regulations pose, employers should take the following steps: update equal employment

policies to prohibit discrimination based on genetic information; include claims based on genetic information in waivers

and releases; remove GINA-protected information from personnel files and place it in separate, confidential medical files;

abandon requests for genetic information (particularly requests that seek family medical history); use the above-referenced

“safe-harbor” language when requesting medical information or making requests that could be construed as seeking genetic

information; train supervisors to understand and comply with GINA; and post notices advising employees of their rights under

GINA.

If you would like assistance in connection with GINA compliance, please contact any Seyfarth Labor and Employment attorney

on our website.


ManagementAlert

Emphasizing the importance of planning ahead, and echoing the Department of Labor’s (DOL) “Plan, Prevent and Protect”

approach to ensuring workplace safety, security, and equality, Office of Federal Contract Compliance Programs (OFCCP)

Director Patricia A. Shiu unveiled OFCCP’s goals for regulatory reform in 2011 on December 22, 2010. The full semi-annual

regulatory agenda can be viewed here. Unsurprisingly, OFCCP’s agenda for 2011 is consistent with the agency’s 2010-2016

strategic plan, a draft of which was released in April 2010. Click here for our Management Alert discussing the strategic plan.

Additionally, Director Shiu will host a live web chat on Friday, January 7, to discuss OFCCP’s agenda. Interested participants

can get information about joining the chat by clicking here.

Development of Strategic Compensation Data Collection Tool

As anticipated, OFCCP is contemplating a new compensation data collection tool as part of an effort to “realiz[e] President

Barack Obama’s goal of ending, once and for all, the persisting gap in wages between men and women, especially women

of color.” OFCCP plans to issue an Advance Notice of Proposed Rulemaking (ANPRM) in February 2011, seeking public

comment on the scope, content and format of the new tool for collecting pay information from federal contractors and

subcontractors. According to the published semi-annual agenda, OFCCP also may use the tool to conduct enterprise-wide

or industry-specific analyses.

Substantive Analysis of Recruiting Efforts and Hiring of Covered Veterans

Continuing its focus on covered veterans, OFCCP will issue a Notice of Proposed Rulemaking (NPRM) to revise the

regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans’ Readjustment

Assistance Act, as amended (VEVRAA). The NPRM is planned for January 2011, with the public comment period to end in

April.

• January4,2011

OFCCP Releases Fall 2010 Regulatory Agenda

http://www.regulations.gov/#!documentDetail;D=DOL-2010-0007-0001

http://www.seyfarth.com/index.cfm/fuseaction/publications.publications_detail/object_id/1ba44ff3-d390-4ca4-bac1-daa05dd9db69/OFCCPDirectorAnnouncesAggressiveStrategicPlanandANewDayattheOFCCP.cfm

www.dol.gov/regulations

Management Alert

As part of its effort to strengthen affirmative action requirements for covered veterans, according to the regulatory agenda,

the NPRM would amend the VEVRAA regulations to require federal contractors and subcontractors to conduct more

substantive analyses of recruitment and placement actions taken with respect to covered veterans and, significantly, would

require federal contractors and subcontractors to use numerical targets to measure the effectiveness of affirmative action

efforts. The NPRM also would revise the recordkeeping requirements for contractors. These proposed types of revisions

would impose significantly different burdens on contractors than under the existing regulations.

Individuals With Disabilities

OFCCP also plans to publish an NPRM to revise the regulations implementing Section 503 of the Rehabilitation Act of 1973,

as amended, in July 2011. An ANPRM previously was published on July 29, 2010. Click here for more information about that

ANPRM.

According to the agenda, the “NPRM would amend the regulations to require that Federal contractors and subcontractors

increase linkages and conduct more substantive analyses of recruitment and placement actions take under section 503,” as

well as make revisions to the recordkeeping requirements.

Enhanced Affirmative Action Requirements for Federal Construction Contractors

Additionally, OFCCP plans to publish an NPRM to revise the affirmative action requirements applicable to federal and

federally-assisted construction contractors in July 2011. The regulatory agenda refers to data indicating that disparities in

the representation of women and racial minorities continue to exist in on-site construction occupations. The NPRM would

propose a “new method for establishing affirmative action goals” and propose other revisions to the construction regulations

as well.

The regulatory agenda notes that increasing the scope of required actions may impose some additional cost on construction

contractors. It further notes that the benefits of revised regulations likely would include increased diversity and opportunities

for women and minorities in on-site construction jobs.

What Contractors Should Do Now

While OFCCP is exploring new methods of gathering compensation data and analyzing contractor compensation, we

understand that some OFCCP offices currently are flagging job titles where average pay for males and females or minorities

and non-minorities has a differential of two percent (2%) or more. Contractors may consider reviewing their compensation

data using this approach.

Contractors also should review their current methods of inviting covered veterans to self-identify, as well as their current

processes for recording that data. Currently, contractors need only post an invitation to self-identify where employees and

post-offer applicants can view it. However, OFCCP may encourage a more robust process, such as utilizing a questionnaire

http://www.seyfarth.com/index.cfm/fuseaction/publications.publications_detail/object_id/de0ac428-ea4f-4037-9ba3-801023844170/KeyOFCCPAuditFocusOutreachtoVeteransandDisabledIndividuals.cfm

Management Alert


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at the appropriate stage of the hiring process, comparable to the obligations federal contractors and subcontractors have

to solicit race and gender data from applicants under Executive Order 11246. It is important to remember that, under most

circumstances, applicants may not be asked to self-identify as disabled veterans (or disabled individuals) until after an offer

of employment has been extended. Contractors also should review how they track recruitment activities directed towards

veterans and the effectiveness of current activities.

Taking proactive measures for individuals with disabilities also is a worthwhile endeavor. Contractors should ensure that

each facility has active relationships with local recruiting sources and other local linkages for disabled candidates, as well

as covered veterans, women and minorities. Many OFCCP audits, especially, although not exclusively, those in the Midwest

Region, involve in depth review of these linkages. OFCCP’s focus on active, local relationships is noteworthy since many

employers have centralized their recruiting activities and have discontinued sourcing from local disability organizations.

Construction contractors may face a new process for establishing affirmative action goals, perhaps more similar to the

approach under the supply and service regulations. It is too early to know what will be required or what adjustments

construction contractors will need to make. We will continue to bring you news on these important developments as they

occur.

If you have questions about this One Minute Memo, OFCCP’s semiannual regulatory agenda or previously-issued strategic

plan, submitting comments in response to an NPRM, or anything else, please contact the Seyfarth attorney with whom you

work or any attorney on our OFCCP & Affirmative Action Compliance Team.

http://www.seyfarth.com/index.cfm/fuseaction/practice_area.area_of_concentration_detail/object_id/56be2072-eb40-4fd3-ac0d-e3cc893a64bf/OFCCPAffirmativeActionCompliance.cfm

ManagementAlert

On December 13, 2010, New York Governor David Patterson signed the Wage Theft Prevention Act (the “Act”). The Act

makes a number of critical changes to the New York Labor Law, adding a variety of increased employee protections and

harsher penalty provisions. The Act also significantly expands the authority of the New York Commissioner of Labor to

remedy violations of the Labor Law.

Below is a summary of the Act’s key provisions, which take effect on April 12, 2011.

1. Notice and Language Requirement

The Act amends section 195 of the Labor Law to require that employers provide all employees, both at the time of hiring

and on or before February 1 yearly, information about pay rates, the basis of the pay rate, how the employee is to be paid

(e.g. hourly), and allowances. The documentation provided to the employee must be both in English and in the employee’s

primary language. The employer must maintain these documents for six years. The Commissioner of Labor is delegated the

responsibility of establishing dual-language-based templates to be used as guidance for such notification.

If an employer fails to provide the appropriate documentation within ten business days of the employee’s initial date of

employment, the employee may recover $50 a week until the violation is remedied, up to $2,500, in addition to costs and

attorney’s fees. The Commissioner may also bring an action to enforce the notice requirement.

2. Wage Statements

The Act amends Labor Law section 195 to require that employers provide pay statements that specify the applicable dates

the wages cover, the rate and basis of pay, and other data. For non-exempt employees, pay statements must also include

the regular and overtime pay rates and the number of regular and overtime hours worked. Employers must maintain these

payroll records for at least six years.

Violations of these requirements can result in damages in the amount of $100 per week for the duration of the violation, up to

$2,500, plus costs and attorney’s fees. The Commissioner may also pursue legal action.

• December13,2010

New York State Enacts New Wage Theft Prevention Act

Management Alert

3. Liquidated Damages

The Act amends section 198.1-a of the Labor Law to permit increased liquidated damages where a violation is shown and

the employer fails to prove that it had a good-faith basis for believing it was acting in compliance with the law. Specifically,

the Act now permits liquidated damages of up to 100% of the total amount of wages due, an increase from 25% under the

current Labor Law.

4. Anti-Retaliation Provisions

The Act amends section 215 of the Labor Law to permit the Commissioner to order additional remedies in the event of

retaliation, specifically enjoining conduct, liquidated damages not to exceed $10,000, reinstatement with back pay, and/or

front pay instead of reinstatement. Unlawful retaliation is also deemed a class B misdemeanor.

Under revisions to section 218, employers that engage in continuous or egregious violations may be subject to financial

penalties in an amount no greater than double the total amount of wages, benefits, or wage supplements due. Further, if

an employer fails to make payments owed more than 90 days after an order by the Commissioner, it may be assessed an

additional 15%. The Commissioner may apportion the wages, interest, or liquidated damages to the employee in a separate

order.

5. Miscellaneous Changes

(a) accounting of assets

Changes to section 196 vest the Commissioner with the authority to require an accounting of assets by the employer if it

fails to comply with an order issued by the Commissioner. Such assets include bank accounts, property (personal and real),

accounts receivable and more. If an employer fails to provide the accounting, the Commissioner may pursue legal action in

New York Supreme Court and obtain a civil penalty not to exceed $10,000.

(b) civil penalties for failure to pay wages or wage payment discrimination

Amendments to section 197 expand the Commissioner’s jurisdiction in instances when the employer fails to pay wages or

discriminates because of gender in the payment of wages. The amendment permits the Commissioner to pursue any type of

legal action, including administrative actions.

(c) liability of officers and agents

An amendment to section 198-a provides for an extension of criminal penalties to officers and agents of corporations,

partnerships, or limited liability companies who knowingly allow wage payment violations to occur.

Management Alert


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(d) notice of employer violations

The Act amends section 219-c to include posting requirements for employers that engage in Labor Law violations. Such

employers must post documentation explaining the violation for up to a year in an area visible to employees.

(e) criminal penalties for minimum wage and overtime violations

The Act imposes new criminal and monetary penalties against employers that fail to pay minimum wage or overtime

compensation due. Any employer that pays less than the amount owed may be guilty of a misdemeanor, and if convicted will

be fined a minimum of $500 and a maximum of $20,000 or imprisoned for up to a year. If a second violation occurs within six

years of the first conviction, the employer will be guilty of a felony.

Section 662 also includes new penalties against employers that fail to maintain records. Such a violation is deemed

a misdemeanor, with fines between $500 and $5,000 or imprisonment for up to one year. A subsequent violation and

conviction within six years results in either a fine of $500 to $20,000 or imprisonment for a period not to exceed one year and

a day, or both.

(f) tolling provisions

The New York labor law is also amended to include new tolling provisions for the applicable six-year statute of limitations.

The limitations period is tolled from the date of the employee complaint or the date of the Commissioner’s initiation of an

investigation, whichever occurs first, until the Commissioner’s order is finalized or the Commissioner informs the employee

that the investigation ended.

(g) civil action

Section 663 of the Labor Law is amended to require a court to award all reasonable attorney’s fees, prejudgment interest,

and liquidated damages equal to 100% of the unpaid wages. This amendment eliminates a court’s discretion to assess

“such reasonable attorney’s fees as may be allowed by the court.”

The amendments to section 198 specify that the employee or Commissioner may obtain attorney’s fees and costs to enforce

a court judgment in any civil action. If amounts remain unpaid after 90 days after the judgment order, or 90 days after the

date for an appeal expires and no appeal is commenced, whichever occurs later, the judgment order automatically increases

by 15%.


website.


1

Employment Law Update:Employment Law Update:A Look Back andA Look Back and a Look Aheada Look Ahead

January 19, 2011January 19, 2011

2 | © 2011 Seyfarth Shaw LLP

AgendaAgenda

• NY Labor Law

• Federal Regulations

• Use of Background Checks in Employment Decisions

• Nursing Mothers Amendment to FLSA

• Dodd-Frank Wall Street Reform and Consumer Protection Act

• In Re FedEx Ground

• Supreme Court 2010 in Review

• Supreme Court Preview

• SDNY Mediation for Employment Cases

2


Changes to New YorkLabor Law


Wage Theft Prevention ActN.Y. Labor Law § 195

• Effective: April 9, 2011

• Notice must be provided at time of hire and then on or beforeFebruary 1st of each subsequent year (e.g., February 2012).

• Notice must be both: (1) in English; and (2) in employee’sidentified primary language►NY Commissioner of Labor tasked with creating dual-language based

templates

►If an employee discloses a primary language for which a template hasnot been created, employer is considered in compliance if provides anEnglish-only notice

3


Wage Theft Prevention ActNotice

• Notice must include:►Rate of pay and basis thereof, including if paid by the hour, shift, day,

week, salary, piece, commission, or other

►Allowances claimed as part of minimum wage, including tips, meals orlodging

►Regular pay day as designated by employer

►Employer’s name (including any “doing business as” names)

►Employer’s physical address of main office or principle place ofbusiness (and mailing address if different)

►Employer’s telephone number

►For non-exempt employees, regular hourly rate and overtime rate ofpay


Wage Theft Prevention ActRetention of Documents / Penalties

• Each time an employer provides notice, must obtain a signedand dated recognition of receipt from employee (both inEnglish and employee’s primary language)

• Employers must maintain signed acknowledgments andpayroll information for period of six years

• Increased criminal and civil penalties

4


New York Wage Theft Prevention ActBest Practices

• Re-draft new hire forms to comply with regulation►“If you would like this form in a language other than English…”

►Above signature line: “I read and fully understand…”

• Schedule annual renewal of notices beginning in February2012

• Ensure that document retention policies are in compliance

• In light of increased civil and criminal penalties, consider awage audit, including independent contractor andexempt/non-exempt status


New York Worker Adjustment andRetraining Notification (“WARN”) Act

N.Y. Labor Law § 25-A

• Adopted on February 1, 2009

• Mirrors federal law, except broader:►Employers of 50 or more employees are covered, whereas employers

of 100 or more under federal WARN

►90-day notice, whereas 60 days under federal WARN

►25 employees, whereas 50 employees under federal WARN

5


New York WARN ActImplementing Regulations

12 NYCRR § 921

• Implementing regulations became final on September 15,2010, with some additional revisions:►“Affected employee” does not include officer, director or shareholder

►Relevant time to calculate employer size: when notice is sent

►Amended required notice language regarding unemploymentinsurance, training and re-employment

►Must also notify regarding recession of plant closing, mass layoff orrelocation

►Must provide documentation if assert an exemption

►More discretion to Commissioner regarding timing of administrativereview


New York Minimum Wage Orderfor the Hospitality Industry

12 NYCRR 146

• Effective January 1, 2011, with implementation period throughMarch 1, 2011

• Increased hourly wages for tipped employees in restaurants,hotels and resorts

• Hourly pay mandatory in hospitality industry

• Tip sharing and tip pooling permitted

• New notice posting

6


Changes to Federal Regulations


EEOC Regulations

• Genetic Information Nondiscrimination Act (GINA)►Regulations finalized in November 2010

• ADA Amendments Act►Regulations finalized by EEOC – pending OMB review

►Expansive of meaning of “disability”

►Focus on reasonable accommodation

• Age Discrimination in Employment Act (ADEA)►Proposed regulations on definition of

“Reasonable Factors Other Than Age.”

7


Regulatory Reform in 2011

• Office of Federal Contract Compliance Programs (OFCCP)►Compensation Data Collection Tool

►Recruiting Efforts for Covered Veterans

►Enhanced Affirmative Action Requirements

• National Labor Relations Board (NLRB)►Mandatory Notice of Employee Rights Under the NLRA

►Impact on NLRB Litigation


Use of Background Checks inEmployment Decisions

8


Use of Credit Histories & Criminal Recordsin Employment Decisions

• Uniform Guidelines on Employee Selection Procedures►6 Factors

• EEOC’s E-RACE Initiative►EEOC’s Stance Policies and practices based on criminal or

credit history may have an overall adverse impact on certainprotected classes – African-Americans and Hispanics.


EEOC Pattern & Practice Lawsuits

• EEOC v. Freeman►alleges use of credit history and criminal justice history has disparate

impact on black applicants and an adverse impact on Hispanic andmale applicants

• EEOC v. Peoplemark►alleges use of criminal record checks in hiring decisions causes

disparate impact on black applicants

• EEOC v. Kaplan►alleges use of credit histories in hiring decisions amounted to

discrimination against black applicants.

9


State Legislation ImpactingBackground Checks

Credit History

• Passed – Oregon, Washington, Hawaii, & Illinois

• Proposed – California, Connecticut, Wisconsin, New York,Missouri, Ohio, New Jersey, & Michigan

Criminal Records

• “Job Relatedness” Requirements► Wisconsin, New York, Pennsylvania, Hawaii, Misourri, Kansas,

Puerto Rico

• Massachusetts CORI Reform


Background ChecksBest Practices

►Evaluate Pre-Employment Inquiries & Hiring Procedures

►Consider Using Credit History More Narrowly

►Review Background Check Criteria by Outside Counsel

10


Nursing Mothers Amendments tothe FLSA


New Federal Break RequirementsFor Nursing Mothers

• FLSA Amendment in Health Care Law

• DOL Fact Sheet (July 2010)►Breaks need not be paid (unless state law provides otherwise or

employer provides paid breaks for employees under similarcircumstances)

►Breaks required only for non-exempt employees

►Breaks as often and for as long as necessary -- up to a year afterbirth

►Break space must be private, free from intrusion and not a restroom

11


New Federal Break RequirementsFor Nursing Mothers

• December 21, 2010 Request for Information►Unpaid break time

►Length of break

►Location of break

►Employee notice required

►Undue hardship exception

►Relation to FMLA

►Enforcement


Dodd-Frank Wall Street Reform

and Consumer Protection Act

(PL 111-203, 7/21/2010)

12


Dodd-Frank Wall Street Reformand Consumer Protection Act

• Amendments to Sarbanes-Oxley

• Bounties

• Anti-Retaliation Protections

• Best Practices


Dodd-Frank -- Whistleblower Provisions:Amendments to SOX

• SOL expanded:► from 90 to 180 days

► runs from date employee becomes aware of violation

• Jury trial in federal court for cases properly removed

• Non-public subsidiaries and affiliates covered if “financialinformation is included in the consolidated financialstatements” of publicly traded company

• Pre-dispute arbitration agreements not permitted

• No waivers by agreement

13


Dodd-Frank -- Whistleblower Provisions:Bounties

• Whistleblowers who give “original information” to SEC thatresults in sanction can keep 10-30% of amount >$1 million

• Purpose: to “motivate those with inside knowledge to comeforward and assist the Government to identify and prosecutepersons who have violated securities laws and recovermoney for victims of financial fraud”


Dodd-Frank -- Whistleblower Provisions:Bounties (cont.)

• “Original information”►derived from independent knowledge or analysis;

►not known from any other source; and

►not exclusively derived from allegations in a legal proceeding,government report, or news media – unless whistleblower is thesource

• Whistleblower may proceed anonymously but must berepresented by counsel if seeking an award, and mustdisclose identity in order to receive it

14


Dodd-Frank -- Whistleblower Provisions:Bounties (cont.)

• Proposed Regulations:► “Whistleblower”: one who provides information “relating to a

potential violation of the securities laws”

►Tension with internal reporting programs

employee can receive bounty even if reported first internally providedSEC is notified within 90 days

SEC will consider higher award for those who first report internally


Dodd-Frank -- Whistleblower Provisions:Anti-Retaliation Protections

• No retaliation against any whistleblower “because of anylawful act” in►Providing information to SEC;

► Initiating, testifying in or assisting in any investigation based upon orrelating to such information; or

►Making disclosures required under SOX, Securities Exchange Act of1934, or any other law within SEC’s jurisdiction

15


Best Practices

• Foster a culture of integrity and accountability

• Encourage employees to lodge complaints internally so that remedialaction can be taken without involving third parties (e.g., the SEC)

• Swiftly investigate and address any alleged unethical conduct

• Ensure employees are not retaliated against and do not mistakenlyperceive they are being retaliated against

• Establish complaint hotlines and other channels for lodging complaints

• Craft and disseminate appropriate code of conduct and ethics,including an anti-retaliation policy

• Train managers to be receptive to complaints


In Re FedEx Ground

The “Right to Control” Controls

16


U.S. Supreme Court

Year in Review


U.S. Supreme Court2010 In Review

• Shady Grove Orthopedic Assoc., PA v. Allstate Ins. Co.,Mar. 31, 2010►FRCP 23 controls federal class actions. States don’t have the

authority to limit right to sue in federal court

• Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., Apr. 27, 2010.►Arbitrators cannot impose class arbitration on parties whose

agreement is silent

• Lewis v. City of Chicago, May 24, 2010►Employers can be sued any time they use test results that rule out a

disproportionate number of women and/or minorities

17


U.S. Supreme Court

2011 Preview


U.S. Supreme Court2011 Preview

• Kasten v. Saint-Gobain Performance Plastics Corp., arguedOct. 13, 2010, on appeal from 7th Cir.►Whether FLSA retaliation prohibition applies only to formal written

complaints

• Staub v. Proctor Hospital, argued Nov. 2, 2010, on appealfrom 7th Cir.►Can employers be liable for discrimination by supervisors who are not

the decision makers

• Thompson v. North Am. Stainless, LP, argued Dec. 7, 2010,on appeal from 6th Cir.►Does employer violate Title VII anti-retaliation provision by firing fiancé

of employee who complained of discrimination

18


U.S. Supreme Court2011 Preview

• AT&T Mobility, LLC v. Concepcion, argued Nov. 9, 2010, onappeal from 9th Cir.►Does FAA prohibit states from requiring class arbitration as part of

every arbitration agreement

• Wal-Mart Stores, Inc. v. Dukes, scheduled for argument Mar.29, 2011, on appeal from 9th Cir.►Whether federal court can hear nationwide class action charging

pattern and practice of pay and promotion discrimination


SDNY Automatic Referral to Mediation forEmployment Cases

• Effective January 3, 2011

• Applies to all “employment discrimination” cases

• Parties may request a mediator with expertise in a particularfield within 5 days of referral order

• No cost -- mediators receive pro bono credit

• Likely would occur at start of litigation prior to discovery

• Company representatives may be ordered to attend session atdiscretion of mediator

• Sessions are confidential