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Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

The Supreme Court put to rest years of uncertainty regarding the enforceability of class action waivers for employees when it decided Epic Systems Corp. v. Lewis, 582 U.S. ___ (2018) on May 21.  In a 5-4 decision, the majority held that employers do not violate the National Labor Relations Act (NLRA) or the Federal Arbitration Act (FAA) by requiring employees to sign arbitration agreements that waive their rights to bring class action suits.  While the Supreme Court’s decision focused on class action waivers in the context of arbitration agreements, its holding could be extrapolated to uphold employee class action waivers included in any agreement between an employer and employee.

Continue Reading SCOTUS Upholds Employee Class Action Waivers in Epic Systems

On January 20, the Department of Labor’s Wage and Hour Division (WHD) issued new guidance on joint employment under the Fair Labor Standards Act (FLSA).  The guidance marks the third time in recent years that WHD has stressed the broad definition of “employment” under the FLSA, following June 2014 guidance on joint employment in the home health care industry and July 2015 guidance on misclassification of employees as independent contractors.  WHD’s consistent focus reiterates that the agency believes that many workers are classified incorrectly and will focus its enforcement activity on these areas.

Continue Reading DOL Issues Guidance on Its Broad View of Joint Employment

The Department of Labor has proposed a rule (available here) that would significantly increase the minimum salary threshold required to qualify for the FLSA’s so-called “white collar” exemptions for executive, administrative, and professional employees. The finalized rule is expected to take effect in 2016.

The current salary threshold, set in 2004, is $455 per

The Supreme Court held on March 25, 2015 in Young v. UPS that a plaintiff alleging pregnancy discrimination based upon the denial of an accommodation may proceed under the familiar McDonnell Douglas framework generally applied to Title VII discrimination claims. The Court’s decision, which resulted in a remand to the Fourth Circuit, surprised many observers in rejecting the arguments set forth by both parties in the case and instead setting forth a new rule for applying the Pregnancy Discrimination Act (“PDA”).
Continue Reading Supreme Court Makes New Rule in Analyzing Pregnancy Discrimination Act

Under a Final Rule recently adopted by the Department of Labor (“DOL”), legally married same-sex couples will be included in the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) and will be eligible to use FMLA leave to care for their spouse or family member, regardless of whether their marriage would be recognized in the state where they live. The Rule is effective March 27, 2015, although at least one state Attorney General has filed an action seeking to enjoin implementation of the Rule.
Continue Reading FMLA Protections for Same-Sex Spouses

In two closely watched cases, the Second Circuit has ruled that the Fair Labor Standards Act (“FLSA”) does not preclude the waiver of class action claims (known technically as “collective actions” under the FLSA). In decisions issued on August 9th and 12th, the Second Circuit reversed lower court rulings that had refused to enforce individual arbitration agreements signed by the plaintiffs.  Instead, the appeals court sent the cases back to the district courts with instructions to compel the plaintiffs to honor their agreements with their employers and to submit their FLSA overtime disputes to separate, individual arbitration proceedings.

Following the Supreme Court’s recent decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), the Second Circuit in Sutherland v. Ernst & Young, case no. 12-cv-304, rejected the plaintiff’s arguments that the FLSA contained a “contrary congressional command” barring waivers of class arbitration, and, further, that the plaintiff could not “effectively vindicate” her rights in an individual arbitration, inasmuch as such a proceeding would be “prohibitively expensive.”  In Raniere et al. v. Citigroup Inc. et al., case no. 11-cv-5213, the Second Circuit issued the same decision on the same basis.
Continue Reading Individual Arbitration Agreements Held to Preclude Class Actions under FLSA

On July 31st, the Office of Federal Contract Compliance Programs (“OFCCP”) of the Department of Labor submitted to the Office of Management and Budget (“OMB”) a final rule revising federal regulations regarding affirmative action for individuals with disabilities by covered federal contractors and subcontractors. If adopted, the regulations would mark the first time the federal

Many employers have been surprised by recent rulings that two common employment policies run afoul of the National Labor Relations Act (“NLRA”).  These rulings apply to policies covering all non-management employees, including employees who are not covered by a collective bargaining agreement.  Based on a legitimate interest in preserving proprietary business information, confidentiality, and privacy, many employers have adopted social media policies limiting what employees may post on Facebook or Twitter about their work, their employer, or their co-workers.  Based on privacy considerations, employer procedures for investigating sexual harassment and other complaints often place restrictions on what employees may reveal to their co-workers or others about the allegations.  According to recent decisions, however, both policies may violate Section 7 of the NLRA, which permits employees to engage in “concerted activity” for “mutual aid and protection.”
Continue Reading Social Media and Other Policies Struck Down By NLRB Even for Non-Union Employees