This is the first of a 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!
More than one lawyer has been burned by a FINRA arbitration panel that seemed ideal on paper, but then, at the hearing, just did not “get it.” Conversely, a panel that initially looks troubling sometimes does a great job at the hearing and gets the decision right (i.e., in your favor, of course). And there ...
by Amy J. Traub, Anna A. Cohen, and Jennifer A. Goldman
Effective April 3, 2012, the Equal Employment Opportunity Commission ("EEOC") extended its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to employers covered by Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). The burden on employers to comply with the recordkeeping requirements under GINA will likely be minimal, as employers should already have recordkeeping policies in effect for personnel and other employment ...
by Peter M. Panken and Jennifer A. Goldman
Gary Ehrhard, an air traffic controller for the Federal Aviation Administration asked for Family Medical Leave Act (“FMLA”) leave to care for his children, 8 and 10 years old. Because they did not suffer from a serious health condition, he was denied FMLA leave, and he claimed that he was later retaliated against for asking for the time off. He discovered that female air traffic controllers were allowed the kind of leave he sought. He sued the Department of Transportation (”DOT”) for sex discrimination and retaliation for ...
The New York Court of Appeals recently upheld a jury verdict in favor of a brokerage firm employee who claimed that his employer breached an oral promise (and violated New York wage law) when it failed to pay him a guaranteed bonus of $175,000, to be paid at the end of his first year of employment. The discussions with the hiring manager regarding compensation were not put in writing. Nevertheless, the employee subsequently signed an acknowledgment in the formal employment application that “compensation and benefits are at will and can be terminated, with or ...
The New York Court of Appeals recently upheld a jury verdict in favor of a brokerage firm employee who claimed that his employer breached an oral promise (and violated New York wage law) when it failed to pay him a guaranteed bonus of $175,000, to be paid at the end of his first year of employment. The discussions with the hiring manager regarding compensation were not put in writing. Nevertheless, the employee subsequently signed an acknowledgment in the formal employment application that “compensation and benefits are at will and can be terminated, with or ...
Guest Post By: H. David Kotz
H. David Kotz is a Managing Director at Gryphon Strategies, a full-service investigation firm, which he joined in January 2012 after serving for over four years as the Inspector General for the SEC. He was a guest speaker at Epstein Becker & Green’s March 7, 2012 breakfast briefing, “2012’s Key Issues for Financial Services Employers.”
The head of the Securities and Exchange Commission’s (SEC’s) Whistleblower program reported on March 14, 2012 that the SEC Whistleblower program has been receiving a continuous volume of complaints since the ...
By: Lauri F. Rasnick
FINRA recently announced that it fined Merrill Lynch, Pierce, Fenner & Smith (“Merrill”) one million dollars for failing to arbitrate claims with employees. See January 25, 2012 News Release. The disputes at issue arose out of promissory notes executed by Merrill employees in connection with the Bank of America Corporation (“BOA”) acquisition. After the BOA acquisition, Merrill created a program called the Advisor Transition Program (“ATP”). Pursuant to this program, Merrill was to pay particular registered representatives lump sum ...
A recent New York state court decision granted a fairly unique petition to disqualify the attorney for a group of former employees from representing them in an intra-industry arbitration at FINRA. Why? Because the lawyer had turned himself into a fact witness by negotiating the termination explanation in the U5 notice of two of the employees. The decision raises an interesting question about whether the same logic could be applied in a U5 expungement hearing at FINRA when there have been discussions between counsel about the U5 language, regardless of whether ...
By: Dena L. Narbaitz
Here is the scenario: your company, a FINRA Member Firm, terminates a broker for “violation of company policies” and reports this as the reason for termination on the broker’s Form U-5 (Uniform Termination Notice for Securities Industry Registration). The broker then sues your company in state court asserting several claims, including defamation for the language contained on his Form U-5. Your company thinks there is a good legal basis to have the broker’s claims dismissed as a matter of law before the case is tried. Should your company litigate the case ...
By Stuart M. Gerson
The three days of arguments about the constitutionality of the Patient Protection and Affordable Care Act are complete. The Justices of the Supreme Court of the United States have conducted their post-argument conference and are now turning their attention to the drafting and the discussions that will lead to a majority opinion and, likely, several dissents and concurrences. The Court's decision should be issued before the end of June. Health care companies and employers, like the rest of the population, await the ultimate decision. However, there are several ...
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