Before the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd Frank”) was enacted, whistleblower claims by registered representatives, including those arising pursuant to the Sarbanes-Oxley Act of 2002 (“SOX”) were subject to mandatory arbitration at FINRA. See FINRA Notice 12-21 (PDF). Dodd Frank changed that. Dodd Frank specifically amended SOX to provide that “[n]o dispute… Continue Reading
Monthly Archives: May 2012
New York’s At-Will Employment Rule Applies To Compliance Officer Allegedly Fired For Objecting To Misconduct
By: William J. Milani and Anna Kolontyrsky The New York Court of Appeals has rejected a wrongful discharge cause of action brought by a hedge fund compliance officer who claimed that he was terminated for questioning a series of personal stock trades by the company’s president. Sullivan v. Harnisch, No. 82 (N.Y. May 8, 2012) (PDF)… Continue Reading
OSHA Announces Creation of the Whistleblower Protection Advisory Committee, In Effort to Improve Efficiency and Transparency of Whistleblower Protection Program
The Occupational Safety and Health Administration (“OSHA”) announced in a May 17, 2012 notice published in the Federal Register that it will establish a Whistleblower Protection Advisory Committee (“Committee”) in an effort “to improve the fairness, efficiency, effectiveness, and transparency of OSHA’s whistleblower protection activities.” Creation of the Committee follows OSHA’s March 2012 reorganization providing for… Continue Reading
Three “Best Practices” to Help Avoid Employee Misclassification Problems
By: John F. Fullerton III On May 16, I co-hosted a small roundtable discussion here at the firm entitled “Employee Misclassification Issues in the Financial Services Industry: Preventive Maintenance and Proactive Strategies.” The topics included proper application of the administrative exemption from federal and state overtime laws; the nettlesome employee v. independent contractor question; and… Continue Reading
FINRA Cases To Be Heard By One Arbitrator, Without A Hearing, Have Been Expanded
By: Dena L. Narbaitz This is the fourth in our series of posts on practice and procedure in employment-related arbitrations before FINRA. Check back often for future posts, subscribe by e-mail (see the sidebar), or follow @FSemployer on Twitter so you don’t miss any updates! The FINRA Code of Arbitration Procedure provides for a simplified arbitration… Continue Reading
Second Circuit Holds That Participation in Purely Internal Investigation Does Not Trigger Title VII “Participation Clause” Protections, Maintaining Uniform Approach Among Courts of Appeals
On May 9, 2012, the Second Circuit held that Title VII’s “participation clause,” prohibiting an employer from retaliating against any employee who participates in an investigation “under” Title VII, requires participation in a formal investigation involving the Equal Employment Opportunity Commission (“EEOC”) – participating in purely internal investigations, conducted pursuant to the employer’s own policies… Continue Reading
International Companies Be Wary of Privacy Laws Overseas That Prohibit the Transfer of Personal Data into the United States
Guest Post By: Kenneth J. Kelly and Diana Costantino Gomprecht It is not uncommon for international financial institutions to face the conundrum of being required to provide documents and information for litigations in the United States that would violate privacy laws in their home country or where their affiliates are located. The most common issues… Continue Reading
Getting Ready For The Summer: Is Your Internship Program In Compliance With The Law?
By: Anna Kolontyrsky and Jeffrey Landes As summer internship season approaches, financial service employers should confirm that their internship programs comply with all relevant laws, including the requirements of the Fair Labor Standards Act (“FLSA”) and applicable state laws. Ascribing the term “intern” to a college or postgraduate student working for an employer for a… Continue Reading
ARB Holds That After-Acquired Evidence Justifying Termination May Limit Back Pay Damages in Whistleblower Cases Under AIR21 Statute, Asks ALJ to Clarify Employer’s Burden of Proof
The Administrative Review Board (“ARB”) on April 27, 2012 held that where an employer charged with retaliation under the AIR21 Statute can point to evidence of misconduct by a whistleblower which would have justified termination, but which was acquired after the termination had already occurred, that evidence may be used to limit the period for… Continue Reading
FINRA Rules 13201 and 13802: Arbitrating Statutory Employment Discrimination Claims
By: John F. Fullerton III This is the third in our series of posts on practice and procedure in employment-related arbitrations before FINRA. Check back often for future posts, subscribe by e-mail (see the sidebar), or follow @FSemployer on Twitter so you don’t miss any updates! Once upon a time, it was mandatory under Form… Continue Reading
