Workforce Bulletin

By:  John F. Fullerton III

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 ...

by John F. Fullerton III

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 ...

By: John F. Fullerton III

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 ...

By Carrie Corcoran

(Revised as of 4/12/12)

On March 28, 2012, legislation was introduced before the New York City Council (“NYC Council”) that, if enacted, will extend employment discrimination protections to unemployed job seekers.  In a climate of persistently high unemployment rates and many discouraged – and disgruntled – jobless persons, it should come as no surprise that, along with New York City, legislatures across the nation are considering drastic measures.  Some of these laws have even passed. 

A year ago, New Jersey was the first state out of the gate when it ...

By Matthew Sorensen

Wage garnishment can pose a number of potential problems for hospitality businesses. This is particularly true where the employee whose pay is subject to garnishment receives tips.

Garnishment is a legal procedure in which an employee’s earnings must be withheld by an employer for the payment of a debt under a court order. When faced with a garnishment order involving a tipped employee, the employer must determine whether all or part of the employee’s tips must be included in the amounts withheld under the garnishment order. This question turns on ...

By Casey M. Cosentino and Eric J. Conn

On March 20, 2012, the U.S. Court of Appeals for the Seventh Circuit vacated an ALJ’s decision penalizing Caterpillar Logistics Services, Inc. for allegedly failing to record an employee’s "work-related" musculoskeletal disorder (“MSD”) on the Company’s OSHA 300 log.  Caterpillar Logistics Services, Inc. v. Sec’y of Labor, No. 11-2958 (7th Cir., Mar. 20, 2012).  This case is significant because it stamps back (at least temporarily) an effort by OSHA to expand the meaning of “work-related” in the context of ergonomic ...