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New Secretary of Labor sworn in

Much has been written recently about the first 100 days of the Trump Administration. Some would argue that little of significance has changed in the employment regulation world. But, the confirmation on April 27, 2017 of new Secretary of Labor R. Alexander Acosta squeaked through the door just before the first 100 days concluded and it could be an initial step towards the sort of employment regulation reform that many in the business community have been expecting.

Secretary Acosta will lead the Department of Labor (DOL), the cabinet department responsible for, among other agencies, the federal Wage and Hour Division …

NLRB’s Dish Network decision: A sign of things to come for employer arbitration agreements?

As he tends to remind us on a regular basis, Donald Trump won the presidential election back in November 2016. But that doesn’t mean that National Labor Relations Board (NLRB) policy turns on a dime. The Board has only three members at this time with Member Philip Miscimarra (R) in the role of Acting Chairman still outnumbered by Members Pearce (D) and McFerran (D). With confirmations of even cabinet level nominations still pending, it could be well into 2018 before a full complement of Board Members are in place and the Republicans take the majority.

Although the Board’s recent decision …

Employer alert: Revised I-9 Form required beginning Jan. 22, 2017

USCIS recently released a revised version of Form I-9, the Employment Eligibility Verification document. Since November 1986, all U.S. employers have been required to complete and retain the I-9 for all new employees. Employers may continue using the I-9 form dated March 8, 2013 until Jan. 22, 2017, when the use of the revised form becomes mandatory. It remains a 3 page form, but there are minor revisions, including a separate supplemental page for a preparer/translator and an “additional information” box on page 2, but there is also a new user-friendly online PDF “smart” version of the form available at …

The door may be open for county or municipal government “right-to-work” laws in Ohio

Right-to-work laws limit the “union security” a union can achieve in a collective bargaining agreement with an employer. In states with no right-to-work law, unions can bargain for contract provisions requiring that, as a condition of continued employment, employees must either join the union or at least pay monthly fees to the union for its collective bargaining efforts. In states that have right-to-work laws, that sort of union security provision is illegal. There are 26 states with right-to-work laws currently. Ohio does not have a right-to-work law.…

November election results likely will significantly impact labor and employment law in coming years

Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law.…

Important update regarding the DOL’S Persuader Rule: Texas District Court issued a permanent, nationwide injunction blocking it

When we last reported on the status of the U.S. Department of Labor’s controversial “Persuader Rule,” it was to inform you that on June 27, 2016, a federal district court in Texas had issued a preliminary injunction that temporarily blocked the DOL’s new interpretation of the rule from taking effect. We are pleased to report that yesterday that same court converted the preliminary injunction into a permanent order blocking the new rule’s implementation. The Texas District Court’s order is national in scope.

U.S. District Judge Sam R. Cummings granted summary judgment to Texas and nine other states, as well as …

Above the fray: The employer’s how-to guide on navigating the election season

A special thanks to Adam Bennett for his assistance with this article.

Election Day is quickly approaching. Rejoice! There really is a light at the end of the tunnel when the endless stream of attack ads will cease to exist. But before the last ballot is cast, the last precinct closes and the final votes are tallied, employers are sure to have plenty of questions about how to address employees’ political expression in the workplace without violating the law or making any employee feel alienated. To avoid being left with post-election blues, Ohio employers are wise to consider how they …

DOL issues updated required posters for FLSA and EPPA

The federal Department of Labor (DOL) has issued an updated poster for the “Employee Rights Under the Fair Labor Standards Act” poster, which is a federally required poster. The updated poster adds information on the rights of nursing mothers (to lactation breaks) under the FLSA, misclassification issues related to independent contractors and tip credits. In an effort to move forward with technology, the new poster also includes a scannable QR code which take employees to the DOL website for information on compliance with the FLSA as well as instructions on how to file a complaint. The poster is available here

DOL’s Persuader Rule blocked from taking effect – for now

A special thanks to summer clerk Arslan Sheikh for his assistance with this article

On June 27th, 2016, a federal district court in Texas issued a preliminary injunction, temporarily blocking the Department of Labor’s (DOL) new interpretation of the “Persuader Rule.” This injunction, which is national in scope, is a big win for employers and attorneys alike as it provides both parties more latitude to discuss union avoidance issues without being subject to reporting requirements. The Texas court’s decision means that the DOL must continue to exempt an attorney from reporting to the DOL on advice given to clients pertaining …

Important update regarding DOL’S new “Persuader Rule”

As we previously reported, the U.S. Department of Labor’s (DOL) new “Persuader Rule” is set to take effect July 1, 2016. The rule is highly controversial because it requires employers and labor relations consultants, including attorneys, to file reports with the DOL regarding any arrangements to assist the employer in “persuading” employees regarding their rights to engage in, or refrain from engaging in, union organizing activities or to collectively bargain. Under the new Persuader Rule, many legal services that labor consultants and lawyers typically provide to employers will have to be reported to the federal government effective July 1, 2016. …

8th Circuit upholds unfair labor practice findings in Jimmy John’s “Sick Sandwich” case

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by …

DOL’s final “Persuader Rule” delivers another coup to unions

Thinking about having an employment relations consultant or attorney meet with your managers and supervisors for a union avoidance session? If so, you may want to have it scheduled to take place prior to July 1, 2016. According to a new rule issued by the Department of Labor (DOL), any union avoidance seminars conducted for supervisors or other employer representatives after July 1, 2016 must be reported to the DOL on government-issued forms.…

Lawyers’ FLSA advice may be discoverable

To avoid an award of liquidated damages in an Fair Labor Standards Act (FLSA) action asserting that a defendant willfully violated the FLSA’s overtime provisions, the defendant must prove that it “acted in subjective ‘good faith’ and had objectively ‘reasonable grounds’ for believing that the acts or omissions giving rise to the failure did not violate the [statute].” FLSA defendants frequently therefore assert that they sought and followed the advice of counsel in assessing whether overtime payments were required under the FLSA, which results in an implied waiver of the attorney-client and attorney work product privileges. The scope of that …

DOL joins NLRB in making joint employment an enforcement priority

In prior posts (Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes,” and ; NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals ), we wrote about decisions by the National Labor Relations Board (NLRB) that expand the definition of joint employment and broaden potential liability for violations of the National Labor Relations Act. Last month, the U.S. Department of Labor (DOL) joined the NLRB in making joint employment an enforcement priority when it issued an Administrator’s Interpretation and …

Seven employment law trends to keep your eyes on for 2016

2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased …

NLRB General Counsel Advice Memo absolves employer for not bargaining over use of GPS devices to track employee

Wait…. What?

Yes, in Shore Point Distribution Co., Inc., the NLRB’s General Counsel’s Office issued an Advice Memorandum yesterday (dated October 15, 2015) in which it stated that an employer did not violate Section 8(a)(5) of the National Labor Relations Act by failing to bargain with union before installing a GPS device on an employee’s truck.

In March 2015, the employer became concerned that one of its employees was taking more time than other drivers to complete the same routes. It therefore hired a private investigator to follow and videotape the driver on his routes. The employer placed a …

Second Circuit upholds NLRB finding that Triple Play Sports Grille unlawfully terminated employees for Facebook postings

Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

In its decision, the Second Circuit …

Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”

Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.

The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, …

Another Federal District Court upholds NLRB expedited election rules

In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend …

U.S. Supreme Court grants certiorari in a case challenging the constitutionality of fair share fees for public-sector unions

In what looks to be an ominous development for public-sector unions, the United States Supreme Court, on June 30, 2015, granted a petition for certiorari by the plaintiffs in Friedrichs v. California Teachers Association, a case out of the Ninth Circuit challenging the constitutionality of requiring public-sector workers who opt out of union membership to still pay union dues as part of “fair share fee” arrangements in collective bargaining agreements. It is ominous because a little over one year ago in the Supreme Court’s 2014 decision in Harris v. Quinn, Justice Alito wrote a majority opinion that blasted …

Transgender status may not be a protected class, but lawsuits involving transgender employees are permitted to proceed

Caitlyn Jenner has dominated the national public interest stories and social media of late. However sensational the news has made this particular story, the issues surrounding transgender individuals are increasingly impacting employers.

Recently, the Eastern District of Michigan permitted one of the first sex-discrimination cases over a transgender employee’s firing to proceed. The Court refused to dismiss the case despite the fact that transgender persons are not a protected class under Title VII, finding instead that transgender employees are like other employees who are permitted to sue their employers over sex stereotypes. The Eastern District of Michigan is part of …

Hiring minors: Not my teenage dream

It is summer, and you know what that means: teenagers, everywhere. And they are not just hanging out at the mall, they are working at the mall, at the local pool, and in other entry-level positions. Unlike other workers, however, teenagers come with their own special set of complications. Generational issues aside, the real concern for employers with employment of minors is complying with federal and state laws specific to employment of minors.

Hiring

Before hiring minors, each employer should verify whether it can hire minor employees in the industry in which the employer operates and the state in which …

Hiring seasonal workers during the summer

One issue that comes up for many employers in the summer is hiring seasonal workers. Hiring temporary seasonal employees presents some substantial legal traps for the unwary. Employers should assess their seasonal hiring practices to ensure compliance with various state and federal laws. In other posts, we advised you on the issues in hiring interns and minors, but here are some other issues employers should look out for when hiring seasonal workers:

  • Verify employees are legally permitted to work in the U.S.
  • Make sure you are following the rules when classifying a seasonal worker as an “independent contractor” versus an

NLRB files complaint against postal service for not bargaining with union over effects of data breach incident

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”) apparently think that there should be an additional step when the data breach involves the personal information of employees who are covered by a collective bargaining agreement – bargaining over the effects of the data breach on, and the remedy to be provided to, the …

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