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FMG Law Blog Line

Posts Tagged ‘San Francisco’

Philadelphia’s “Salary History Ban Law” Gets Banned!

Posted on: May 7th, 2018

By: Jen Ward and John McAvoy

More than a half-century after President JFK signed the Equal Pay Act, the gender pay gap is still with us. Women earn 79 cents for every dollar men earn, according to the Census Bureau.  What will it take to bridge that stubborn pay gap? Well, some believe we can and will reduce the impact of previous discrimination by not asking new hires for their salary history. Several cities and states agree with this approach and have passed legislation that prohibits employers from asking questions about an applicant’s salary history. In the cities and states where such laws have been passed, they are not without controversy.

Philadelphia passed a similar law last year. In response, Philadelphia’s Chamber of Commerce, backed by some of Philadelphia’s biggest employers, including Comcast and Children’s Hospital of Philadelphia (CHOP), filed suit against the City of Philadelphia challenging the constitutionality of the salary history ban law, arguing the portion of the law that prevents companies from inquiring about an applicant’s wage history violated an employer’s free speech rights.

On Monday, April 30, 2018, the Eastern District of Pennsylvania made two rulings with respect to Philadelphia’s salary history ban law in the matter of Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, docket no. 2:17-cv-01548-MSG (E.D. Pa. Apr. 30, 2018) (Goldberg, J.).

First, the court found that the law as written violated the First Amendment free speech rights of Philadelphia employers. In sum, the court’s ruling is that employers can ask salary history questions.

Second, the court upheld the ‘reliance provision’ of the salary history ban law, which makes it illegal to rely upon that wage history to set the employee’s compensation.  This means that Philadelphia employers can ask salary history but cannot use it as a basis to set salary.  The purpose of this is to encourage employers to offer potential candidates what the job is worth rather than based on prior salary which could have been set based on discriminatory factors.

There is a prevailing trend nationwide for salary history ban laws. To date, California, Delaware, Massachusetts, Oregon, Puerto Rico, New York’s Albany County, New York City, and San Francisco have enacted salary history ban laws, and at least 14 other states are considering following suit.  Although we anticipate future and continued legal challenges, it seems likely that laws banning salary history inquiries will continue to gain ground, particularly in more progressive states or areas where the pay disparity directly impacts a large segment of eligible voters. As such, prudent employers should prepare themselves to address this new workforce right through smart planning and proper training of employees, including managers, supervisors and HR personnel responsible for ensuring a lawful hiring process.

Want to learn more about what Philadelphia’s salary history ban law means for your business? Let us help you by analyzing your hiring practices. Please call or email the employment experts Jen Ward (267.758.6012 [email protected]) and John McAvoy (215.789.4919 [email protected]). Our firm motto and goal is “Your Problem Solved!”

Was That An Out-Of-Bounds Whistle?

Posted on: February 23rd, 2018

By: Samuel Y. Edgerton, III

On Wednesday, February 21, 2018 the U.S. Supreme Court settled a split of opinion between the Ninth and Fifth Circuit Court of Appeals. The issue before the high court concerned the definition of the term “whistleblower” under the Dodd-Frank Act.

In March 2017, the Ninth Circuit found that former Digital Realty executive Paul Somers was entitled to whistleblower protection under Dodd-Frank after being discharged because he complained to upper management that a senior vice president had eliminated some internal corporate controls. These eliminations allegedly constituted a violation of the Sarbanes-Oxley Act.  However, in 2013, a Fifth Circuit ruling in a similar case, Asadi v. G.E. Energy, found that to be eligible for protection under Dodd-Frank as a recognized “whistleblower,” the employee must show that they took their complaint to the SEC, per the specific wording of the statute.

Mr. Somers’s San Francisco based employer appealed the Ninth Circuit’s ruling to the high court, as it was undisputed that Mr. Somers had not reported to the SEC, but reported elsewhere.

In ruling for a definition of a whistleblower as those who report to the SEC, the Supreme Court excluded Dodd-Frank whistleblower protections to those only reporting at their place of work.

The high court ruling is instructive on two fronts: It means that whistleblower definitions in the enabling statute are to be strictly construed. The high court opinion also suggests quite strongly that lower courts and federal agencies cannot ignore unambiguous language in an enforcement statute and expand the definitional meaning on their own.

Score one for the strict constructionist! The Ninth Circuit was out of bounds.

As stated by Justice Kagan during oral argument last November, “you have this definitional provision, and it says what it says.”

If you have any questions or would like more information, please contact Sam Edgerton at [email protected].

Waymo v. Uber – Addressing the Stakes of Driverless Car Trade Secrets and Intellectual Property

Posted on: February 12th, 2018

By: Courtney K. Mazzio

The litigation surrounded a man named Anthony Levandowski, a former Waymo employee who took thousands of documents with him when he left Waymo in 2015 to pursue his own company. Uber purchased Levandowski’s company, giving Levandowski the lead role in its efforts to get their self-driving vehicle technology off the ground. At issue in the lawsuit between Uber and Waymo was the lidar laser sensor, which Levandowski had helped develop while at Waymo. In short, this technology measures distance to a target, and so, is used in the control and navigation of self-driving cars. As you might imagine, this technology in the infancy of the driverless car development was a highly coveted piece of intellectual property.

Settlement talks were initially in the billions, but the final figure was 245 million, or 0.34 percent of Uber’s current company valuation. The agreement also includes a provision to insure Waymo’s confidential information is not incorporated into Uber technology.

This settlement not only protects Uber’s driverless car momentum in their race to be the first taxi service to successfully utilize the technology at a relatively cheap price, but also maintains Waymo’s position at the forefront of the self-driving technology. To insure this position enjoys longevity, employees of Waymo can expect they will likely be tightening its control and security over confidential information and property developed within its walls.

If you have any questions or would like some more information, please contact Courtney Mazzio at [email protected].

Giants Get Roughed Up By DOL

Posted on: September 11th, 2014

By: Martin B. Heller

As we previously have reported, Major League Baseball is facing substantial potential liability in an alleged conditional class claim brought by minor league baseball players against their respective major league teams for failing to pay minimum wage and overtime.

Last month, the San Francisco Giants were hit with some wage and hour liability separate and apart from the on-going potential class claim.  The Giants paid almost $550,000.00 to 74 employees that allegedly did not receive both overtime and minimum wage payments.  The Department of Labor’s release indicates that the payments covered both major and minor league employees, including clubhouse managers, clubhouse assistants and video production employees.  The DOL found that some employees were misclassified as exempt, and others were paid a flat rate for working 5.5 hours per day, however, they supposedly were working between 12 and 15 hours per day.

 This significant penalty is an ominous sign for the pending lawsuit, as it signals a likely finding that time spent at the ballpark is time spent working under the FLSA.  It also is a great reminder that, although day rate methods of payment can be beneficial for employers, there is no substitute for accurate and complete time records, and without them, an employer may open themselves up to substantial liability through employee allegations of additional hours worked.