David S. Fryman

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The Securities and Exchange Commission (SEC) has recently announced settlements with a number of companies whose separation agreements or internal policies the SEC viewed as impeding employees’ participation in the SEC’s whistleblower program, including privately-held companies not otherwise regulated by the SEC.

The Upshot

  • The SEC’s whistleblower program gives broad protections to individuals seeking to report potential violations of the securities laws, and has been aggressively enforced since its adoption in 2011.
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Earlier this week, New Jersey state senators tabled the vote on Bill S511, landmark legislation dubbed the NJ temporary worker “Bill of Rights.” Governor Phil Murphy conditionally vetoed the proposed legislation last month, and advocates expected the bill to pass following the state Assembly’s approval of Gov. Murphy’s revisions. But ultimately, state senators pulled the bill due to insufficient support to pass the revised version, leaving employers with the current state of flexibility to work with temporary agencies to fill gaps in their workforce.… Continue Reading

The United States Court of Appeals for the Seventh Circuit has rejected the Equal Employment Opportunity Commission’s appeal seeking to overturn the trial court’s decision that Walmart did not violate the Pregnancy Discrimination Act when it accommodated all workers injured on the job, but denied all pregnant women a similar accommodation.… Continue Reading

On September 24, 2021, the White House issued Guidance explaining that Federal contractors and subcontractors with a covered contract or contract-like instrument must comply with the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except where an employee is legally entitled to an accommodation;
  2. Compliance with masking and physical distancing while in covered contractor workplaces; and
  3. Designation of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
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Effective September 7, 2021, staff in New Jersey’s public and private health care facilities and congregate settings deemed “high risk” must receive the COVID-19 vaccine or, alternatively, be subject to COVID-19 testing one to two times per week.  A list of the type of impacted facilities is available here.

By September 7, health care facilities with unvaccinated employees must have a plan for regular testing. … Continue Reading

The latest episode of Business Better is a discussion of “no-poach” agreements – agreements between competitors that neither will hire the other’s employees. We’ll discuss the different types of such agreements, their enforceability under antitrust and other laws and the possibility of criminal prosecution arising from their use, and how to protect a business from poaching without running afoul of the law.… Continue Reading

On June 9, 2021, in Professional Transportation Inc., the National Labor Relations Board held that a party’s offer to collect an employee’s mail ballot constitutes misconduct that may serve as the basis to set aside the election. 370 NLRB No. 132.

The Board has previously held that a party engages in objectionable conduct when it handles or collects a mail-in ballot.… Continue Reading

Whether employee no-poach agreements are illegal per se is being tested in a criminal case, U.S. v. Surgical Care Affiliates LLC et al., drawing the attention of many interested parties, including the United States Chamber of Commerce (Chamber).

In 2016, the Federal Trade Commission (FTC) and the Department of Justice, Antitrust Division (DOJ or the Division) released joint guidance signaling that agreements between competing employers that “limit or fix the terms of employment” for prospective employees may violate antitrust laws. … Continue Reading

On Monday, the City of Philadelphia adopted a new version of Public Health Emergency Leave (PHEL), mandating up to 80 hours of paid leave benefits in 2021 for employers with 50 or more employees.  The law went into effect on the date it was signed — March 29, 2021. PHEL is a new leave entitlement in 2021 that is not reduced based on any leave usage prior to its enactment.  … Continue Reading