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  • 10 Mar 2024 4:17 PM | Courtney Klow (Administrator)

    The U.S. Supreme Court ruled Feb. 8 that “retaliatory intent” doesn’t have to be proven in whistleblowers’ Sarbanes-Oxley Act (SOX) retaliation claims, only that the protected activity was a “contributing factor” in an unfavorable employment action. In this case, the distinction involves a whistleblower seeking reinstatement of a damages award of nearly $1 million along with $1.77 million in attorney fees and costs.

    The ruling is a reminder to employers to practice good documentation on all employment decisions.

    “SOX protects employees of a broad array of entities—namely, public companies, essentially, those listed on stock exchanges and other types of companies that make SEC [U.S. Securities and Exchange Commission] filings, like mutual funds, as well as their officers, employees, contractors, subcontractors and agents,” said Brian Neil Hoffman, an attorney with Holland & Hart in Denver and Washington, D.C. “SOX specifically applies to reports about various types of perceived fraud.”

    “This decision makes it easier for SOX whistleblowers to establish retaliation,” said Katie Reynolds, an attorney with Fisher Phillips in Boston. She said the decision underscores the importance of diligent documentation of workplace issues and employment decisions to defend against any inference of retaliation.

    “Employers should continue to ensure they are operating lawfully and ethically,” said Tracey Salmon-Smith, an attorney with Faegre Drinker in Florham Park, N.J., and New York City.

    Plaintiff Persuaded Jury in Case

    In Murray v. UBS Securities, Trevor Murray was employed as a research strategist at securities firm UBS within the firm’s commercial-mortgage-backed securities (CMBS) business. He was responsible for reporting on CMBS markets to current and future UBS customers. SEC regulations required him to certify that his reports were produced independently and that they accurately reflected his own views.

    Murray contended that, despite this independence requirement, two leaders of the CMBS trading desk improperly pressured him to skew his reports to be more supportive of their business strategies, instructing Murray to clear his research articles with the desk before publishing them.

    Murray reported that conduct to his supervisor, asserting that it was unethical and illegal. His supervisor expressed sympathy for Murray’s situation but emphasized that it was important for Murray to not alienate his internal client—that is, the trading desk, the plaintiff said.

    When Murray later informed his supervisor that the situation with the trading desk was bad and getting worse because he was being left out of meetings and subjected to more efforts to skew his research, his supervisor said he should just “write what the business line wanted,” according to the plaintiff. Soon thereafter, Murray was fired.

    UBS had argued to the jury that marketwide difficulties and a $2 billion loss on a UBS trading desk in London had required the elimination of certain positions, including Murray’s.

    The jury ruled in favor of the plaintiff, and the district court adopted the jury’s damages award of more than $900,000 and awarded the attorney fees and costs of $1.77 million. The 2nd U.S. Circuit Court of Appeals reversed, holding that SOX’s anti-retaliation provision required a whistleblower to prove retaliatory intent. The Supreme Court reversed the 2nd Circuit’s holding and remanded the case for further proceedings consistent with its opinion.

    Opinion Emphasized Burden-Shifting Framework

    The burden-shifting framework used in SOX cases provides that the whistleblower bears the burden to prove the protected activity was a contributing factor in the unfavorable employment action alleged, the Supreme Court noted. If the whistleblower makes that showing, the burden shifts to the employer to show by clear and convincing evidence that it would have taken the same unfavorable action in the absence of the protected activity.

    The Supreme Court contrasted that framework with that of Title VII of the Civil Rights Act of 1964 and other laws prohibiting employment discrimination.

    “Many statutes dealing with employment discrimination apply a higher bar, requiring the plaintiff to show that his protected activity was a motivating or substantial factor in the adverse action,” the court said. But the incorporation of the contributing factor standard in Sarbanes-Oxley reflects a judgment that employment actions against employees “should quite simply not be based on protected whistleblowing activities—not even a little bit.”

    The contributing-factor burden-shifting framework is meant to be more lenient than most, the court said. Congress adopted this framework to protect “employees in industries where whistleblowing plays an especially important role in protecting the public welfare,” including the securities industry under SOX.

    “The jury heard both sides of the story,” the Supreme Court said. “It then determined that Murray had shown that his protected activity was a contributing factor in his firing while UBS had not shown that it would have taken the same action in the absence of his protected activity. That burden-shifting—and not some separate, heavier burden on the plaintiff to show ‘retaliatory intent’—is what the statute requires.”

    UBS argued that without a retaliatory intent requirement, innocent employers will face liability for legitimate, nonretaliatory employment decisions, the Supreme Court noted. However, the court ruled, the statute’s burden-shifting framework provides that an employer will not be held liable if it demonstrates by clear and convincing evidence that it would have taken the same unfavorable action in the absence of the protected behavior, the court added.

    Moreover, a retaliatory intent requirement is absent from the statutory text, the court held.

    How Might This Ruling Affect Employers?

    SHRM had supported the 2nd Circuit’s requirement that a SOX retaliation plaintiff show retaliatory intent to prevail, submitting an amicus brief cautioning that to reverse would create a lack of clarity for HR and employers and create inconsistency in the standards for similar retaliation claims, contrary to congressional intent.

    “Without an intent requirement, human resource professionals and employers would be left in the position of proving that they did not engage in certain conduct as opposed to the traditional requirement that the affected employee bear the burden of proving that they did engage in certain conduct with the requisite state of mind,” SHRM wrote.

    Following the Supreme Court’s decision, it’s more important than ever that employers covered by SOX train their employees on the court’s decision and law’s requirements, said Owen Wolfe, an attorney with Seyfarth in New York City.

    High Court Ruling Makes It Easier for Whistleblowers to Advance SOX Retaliation Claims (shrm.org).

  • 07 Mar 2024 9:55 PM | Courtney Klow (Administrator)

    FOR IMMEDIATE RELEASE

    February 27, 2024 

    Voyant Beauty Will Pay $75,000 to Settle EEOC Disability Discrimination Lawsuit

    Federal Agency Charged that Beauty Supply Company Illegally Refused Job to Deaf Individual

    CHICAGO – Voyant Beauty, LLC will pay $75,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

    The EEOC charged in its suit that Voyant terminated an employee on her first day of work upon learning that she is deaf. The company did so even though she was qualified for the job and could have performed its essential functions with or without accommodation. According to the lawsuit, Voyant made the unfounded assumption that, because she is deaf, the employee could not safely work as a production worker at the company’s Countryside, Illinois, facility.

    Such conduct violates the Americans with Disabilities Act, which prohibits discrimination based on disability and requires employers to reasonably accommodate an employee’s disability, unless an accommodation would impose an undue hardship. The EEOC filed suit in U.S. District Court for the Northern District of Illinois (Civil Action No.1:23-cv-014023), after first attempting to reach a pre-litigation settlement through its conciliation process. 

    Under the consent decree resolving the lawsuit, Voyant will pay $75,000 in compensation to the deaf individual. Voyant will also provide training to relevant management employees on federal laws prohibiting disability discrimination and will report to the EEOC on the hiring of disabled applicants for the decree’s duration.

    “Relying on unfounded stereotypes about an individual’s disability in making employment decisions is illegal,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District Office. “A decision not to hire someone with a disability based on a safety concern must be based on an individualized assessment of the person’s actual ability to safely perform the essential functions of the job, potentially with accommodations. The ADA requires this to be determined based on objective evidence, not assumptions or guesswork.”

    For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination.

    The EEOC’s Chicago District Office is charged with enforcing federal employment discrimination laws in Illinois, Wisconsin, Minnesota, North Dakota, South Dakota and Iowa. 

    The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates


  • 07 Mar 2024 9:53 PM | Courtney Klow (Administrator)

    FOR IMMEDIATE RELEASE

    January 31, 2024  

    Blackwell Security Services Will Pay $70,000 to Settle EEOC Religious Discrimination Lawsuit

    Security Company Failed to Provide Religious Accommodation for Muslim Employee 

    CHICAGO – Blackwell Security Services, Inc. will pay $70,000 and provide other relief to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

    The EEOC charged in its suit that Blackwell refused to accommodate an employee’s religious practice, needlessly forcing him to choose between his religion and his livelihood. According to the EEOC’s lawsuit, the employee, who worked as a concierge in Chicago, Illinois, is a practicing Muslim who wears a beard in observance of his religious beliefs. Soon after he was hired, he was told by a Blackwell supervisor that it was company policy that all employees be clean-shaven.

    The employee requested an exemption from the policy to accommodate his religious practice. However, Blackwell told him to shave his beard or be terminated, even though accommodating his religious practice would impose no cost or operational burden on the business. To avoid losing his job, the employee complied and shaved his beard, causing him significant distress.

    This alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on religion and requires employers to reasonably accommodate an employee’s religious observance or practice, unless an accommodation would impose an undue hardship. The EEOC filed suit in U.S. District Court for the Northern District of Illinois (Civil Action No.1:23-cv-14110), after first attempting to reach a pre-litigation settlement through its conciliation process. 

    Under the consent decree resolving the lawsuit, Blackwell will pay $70,000 in compensation to the now-former employee. Blackwell will also provide training to relevant management employees on federal laws prohibiting religious discrimination and will report any additional complaints of religious discrimination to the EEOC for the decree’s duration.

    “Title VII protects Americans of all religious faiths and backgrounds and requires employers to make reasonable accommodations for employees’ religious practices when doing so does not impose an undue hardship on the employer’s business,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District Office. “Here, the accommodation the employee requested—being able to wear a beard at work in observance of his faith—imposed no burden on anyone. There was no need for this employee to be forced to choose between his religion and his livelihood. Employers must ensure that they evaluate accommodation requests in a manner consistent with federal law.”

    For more information on religious discrimination, please visit https://www.eeoc.gov/religious-discrimination.

    The EEOC’s Chicago District Office is charged with enforcing federal employment discrimination laws in Illinois, Wisconsin, Minnesota, North Dakota, South Dakota, and Iowa. 

    The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates

  • 10 May 2023 3:47 PM | Courtney Klow (Administrator)

    The Minnesota Senate passed a plan for paid family and medical leave on Monday May 8th, 2023. 

    Governor Walz tweeted "Paid family and medical leave will make it a whole lot easier to raise a child or care for a relative without losing a paycheck.

    When the bill reaches my desk, I'm ready to sign it into law - and show the country what it takes to be a state that works for everyone." 

    For more details and to view the full article visit: Minnesota Senate passes paid family and medical leave - WDIO.com – With you for life

  • 16 Oct 2020 1:04 PM | Kate Nolin-Smith


    SHRM Foundation’s Team Empower – Turning obstacles into opportunities takes teamwork...join us to make a difference!

    Team Empower is a special group of passionate individuals who are dedicated to helping empower HR professionals to build inclusive organizations. Established in 2017, Team Empower is the SHRM Foundation's most accessible giving circle.

    Your annual donation of $30 or more will automatically add you to the team.

    All members of Team Empower will:

    ·         Receive an official Team Empower ribbon to display proudly at SHRM conferences and local events.

    ·         Receive a digital badge to display on personal websites, social media or LinkedIn.

    ·         Be recognized by the SHRM Foundation throughout the year for their support and dedication.

    ·         Receive access to Team Empower’s exclusive LinkedIn networking group.

    Here is the link https://shrm.org/foundation/getinvolved/donate/join-team-empower/Pages/default.aspx


  • 15 Jun 2020 11:34 PM | Kate Nolin-Smith


    Report unemployment insurance fraud

    The Minnesota Unemployment Insurance (UI) Program operates a continuous investigation program to detect and prevent administrative errors, benefit overpayments, and tax irregularities. These activities protect the UI trust fund by ensuring that all employers are assessed the proper tax rate and all benefits are paid only to eligible applicants as defined by Minnesota law. Violations by applicants and employers may be criminally prosecuted as felony theft under the fraud provisions of the law.

    You can help prevent fraud by reporting potential violations to the UI Program by using the online Fraud Report. When completing the Fraud Report:

    • Provide as much information on the form as possible.
    • Your contact information can be helpful in the investigation; however, you are not required to provide it.
    • To remain anonymous, simply do not enter your name and contact information in the Fraud Report.
    • Be aware that you will not be updated on the status of the investigation.

    Applicant Fraud: An Unemployment Insurance Specialist will follow up on all potential violations from the public. An example of a potential violation is an individual that is working and not reporting hours or earnings during the same period of time he/she is receiving unemployment insurance benefits.

    Employer Fraud: An Unemployment Insurance Specialist will investigate potential tax avoidance schemes. Common schemes include the designation of employees as independent contractors and the creation of shell corporations.

    Detecting and Recovering Benefit Overpayments: The Minnesota Unemployment Insurance (UI) Program actively pursues collection efforts based on the amount of debt owed.

    Remaining Anonymous: Anonymous reports can be harder for us to act upon if we need more information. If you do choose to provide your name and contact information, we may have to provide that information to involved parties in the event that there is legal action taken regarding the fraud.

    If you have questions about reporting fraud, please call us at 651-296-8715

    Visit the website at https://www.uimn.org/employers/contact-us/ui-fraud.jsp 


  • 12 Jun 2020 6:55 PM | Kate Nolin-Smith

    In our commitment to serving the HR community, we would like to address the issue of recent fraudulent Unemployment Insurance claims. Unfortunately, with so many layoffs occurring, this is a prime opportunity for scammers to submit fraudulent claims.

    It is highly recommend logging in to your employer UI portal to make sure no one has made a fraudulent claim. If there is a fraudulent UI claim, any business or employee who has been affected can contact Unemployment Insurance by phone at:

    Toll Free: 1-877-898-9090

    Local: 651-296-3644

    Web address: www.uimn.org

    Understanding that wait times are long to talk with a UI representative, if the fraudulent claim is a matter that requires a quicker response, please email deed.dw@state.mn.us and provide a brief synopsis of the issue. If needed, employers can also email jason.wadell@state.mn.us


  • 05 Jun 2020 10:55 AM | Kate Nolin-Smith

    NHRA is committed to supporting our HR community during this rapidly changing time.

    If you are an HR professional in transition, NHRA would like to extend a FREE membership through DECEMBER 31ST 2020. We know this is a challenging time. Education and support can go a long way. Join NHRA and come network with people who want to help YOU and continue to see our community grow!

     

    To Register for your FREE membership, please reach out to Amanda Goodman at amanda.goodman@nm.com

  • 27 May 2020 11:32 AM | Kate Nolin-Smith

    We are honored to announce that SHRM (the Society for Human Resource Management) recently awarded the Northland Human Resource Association (NHRA) its prestigious EXCEL Platinum Award for the NHRA’s accomplishments in 2018.

    The EXCEL award aligns individual chapters’ and state councils’ activities with SHRM’s aspirations for the HR profession. The award recognizes major accomplishments, strategic activities, and tactical initiatives that elevate the profession of human resources.  

    Johnny C. Taylor, Jr., SHRM-SCP, president and chief executive officer of SHRM, said, “So much of SHRM’s success in shaping better workplaces—where employers and employees can thrive together— is owed to the hard work of our chapters and state councils such as NHRA. Through their courage and leadership, NHRA is driving true, measurable progress toward the healthy, productive, and dynamic workplaces of tomorrow.”   He further stated that “Awarding this Platinum EXCEL Award is just one small way for SHRM to recognize and celebrate the big steps this chapter has taken this past year.”

  • 28 Apr 2020 11:22 AM | Kate Nolin-Smith

    Here is a helpful resource from the Duluth Area Chamber of Commerce for MInnesota businesses that are preparing to reopen.

    Business Reopen Tool Kit

    Yesterday, Governor Tim Walz signed Executive Order 20-40, which allows workers in industrial and office settings to return to work, subject to several conditions. Executive Order 20-40 provides a limited first step in the process of safely returning to work beginning on Monday, April 27.

    In conjunction with the Minnesota Chamber of Commerce and Minnesota Department of Employment and Economic Development, we are sharing with you this Business Reopen Tool Kit:


    For more information, go to the Duluth Area Chamber of Commerce website https://duluthchamber.com/business-resources-coronavirus/#ToolKit

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