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NLRB invites businesses to provide feedback on when an employee’s offensive comments should lose the protection of federal labor law

The National Labor Relations Board (NLRB or Board) invited interested parties to submit feedback about when an employee’s offensive or inappropriate workplace comments should lose the protection of the National Labor Relations Act (NLRA). Specifically, the NLRB is inviting employers and other parties to submit briefing about whether it should reconsider its standards for determining whether Section 7 of the NLRA protects employees who make “profane outbursts and offensive statements of a racial or sexual nature…during the course of otherwise protected activity.” By way of background, Section 7 of the NLRA gives employees the right to engage in “concerted activities …

DOL increases salary threshold for white collar exemptions to $35,568

After more than 15 years, the U.S. Department of Labor (DOL) is updating the overtime regulations under the Fair Labor Standards Act (FLSA). The FLSA entitles most employees to minimum wage and overtime pay for all hours worked over 40 in a workweek. However, employees who meet the salary threshold and the relevant duties test qualify for the executive, administrative, professional exemption (white collar exemption), and are not entitled to overtime pay. On Sept.24, 2019, the DOL issued a news release announcing its final rule regarding overtime regulations.

Effective Jan. 1, 2020, the new salary threshold for white collar exemptions …

NLRB sides with Kroger’s action to remove union representatives from company property

On Sept. 6, 2019, the National Labor Relations Board (NLRB) granted a significant win to employers, ruling that businesses can lawfully limit the rights of nonemployee union supporters to access company property that is otherwise open to the public. In a 3-1 decision, the Board ruled that Kroger did not violate the National Labor Relations Act (NLRA) when it removed nonemployee union supporters from the parking lot of a Kroger store. The decision overruled a 2016 ruling by an NLRB administrative judge that Kroger had illegally barred two nonemployee representatives of the United Food and Commercial Workers Union from petitioning …

Misclassifying employees as “independent contractors” does not violate NLRA

The decision to classify a worker as an independent contractor, rather than as an employee, carries significant legal implications. Misclassifying employees as independent contractors can result in employer liability for unpaid payroll taxes, unpaid unemployment and workers’ compensation premiums, and responsibility for failure to provide the various rights afforded under employment laws to employees but not to independent contractors. A careful approach, including legal advice, is always wise in evaluating whether a worker can properly be classified as an independent contractor. However, the National Labor Relations Board (NLRB) has taken one element of risk out of the decision.

In a …

Kentucky’s new pregnancy accommodation law goes into effect

Kentucky recently enacted the Pregnant Workers Act, which amends the Kentucky Civil Rights Act to provide accommodations to pregnant and lactating employees. The law goes into effect on June 27, 2019. Below are the important implications of the Pregnant Workers Act, which will affect employers that operate or maintain business locations in Kentucky.

Who does the law cover?

Covered employers are those that employ 15 or more persons during 20 or more calendar weeks in the current or preceding calendar year. Employees limited by pregnancy, childbirth or related medical conditions, including lactation, are eligible for reasonable accommodations under this …

Multi-state employers: Be prepared for July 1 minimum wage increases

On July 1, 2019, the minimum wage will increase in several locations throughout the country. While the federal minimum wage has remained $7.25 per hour since July 2009, many states, cities and counties have adopted their own minimum wage laws which provide for a higher rate. In areas where minimum wage laws overlap, employees are entitled to receive the highest applicable rate.

The following minimum wage increases will become effective July 1, 2019:

 

California

  • Alameda, California: $13.50 per hour
  • Berkeley, California: $15.59 per hour
  • Emeryville, California: $16.30 per hour for all businesses (the rate is no longer differentiated by

United States Supreme Court makes it easier to get discrimination cases into court

The U.S. Supreme Court ruled recently that Title VII’s administrative exhaustion requirement – whereby an employee must file a claim with the EEOC prior to filing a lawsuit – is not a jurisdictional rule. This means that the employee’s failure to file a charge does not automatically mean the case cannot go to court. Instead, the employer must raise the “failure to file” issue as an affirmative defense and do so in a timely fashion. The case is Fort Bend County v. Davis.

Facts

Lois Davis filed a charge against her employer, Fort Bend County, with the Texas Workforce …

Supreme Court to determine if Title VII prohibits discrimination based on gender identity

This fall the Supreme Court will hear the case of EEOC v. R.G. & G.R. Harris Funeral Homes, in which it will decide whether Title VII prohibits discrimination on the basis of gender identity. The case is on appeal from a 2018 decision of the Sixth Circuit Court of Appeals.  EEOC v. R.G. & G.R. Harris Funeral Homes. In Harris Funeral Homes, a former employee of a funeral home was terminated after she transitioned from male to female. The Sixth Circuit ruled that, while transgender status is not specifically protected under Title VII, alleged discrimination based on

Standard for religious accommodation requests may get Supreme Court review

Requests for religious accommodations at work can involve a wide range of issues including schedule changes, relief from weekend or overtime work, breaks to accommodate prayer or other religious practices, dress code accommodations and even tattoos. Religious accommodations must be granted if they are “reasonable.” Currently employers have a pretty low hurdle to cross when arguing that a requested accommodation is not reasonable. The U.S. Supreme Court is sending signals that hurdle may become higher.

“Undue burden”

In religious accommodation cases, just like disability accommodation cases, to show that a requested accommodation is unreasonable an employer must show it will …

DOL seeks to limit joint employer liability for wage and hour claims

On April 1, 2019, the Department of Labor (DOL) announced a proposed rule to narrow the definition of a “joint employer” under the Fair Labor Standards Act (FLSA). Because joint employers are jointly and severally liable for wage and hour claims brought under the FLSA, the change could have a significant impact on wage and hour litigation as we know it, offering franchisers and businesses that hire workers through staffing firms a shield from liability for some minimum wage and overtime pay violations.

Proposed regulation

Image depicting stack of wage and hour claims

Part 791 of Title 29 of the Code of Federal Regulations contains the DOL’s

Employer’s good faith offer to reinstate employee as part of settlement negotiations in exchange for dismissing a lawsuit is not considered retaliation

In a recent case, Bresler v. Rock, 2018-Ohio-5138, an employee incongruously argued that an employer’s offer to reinstate his employment in exchange for dismissal of his pending lawsuit was a retaliatory action.  The Ohio Court of Appeals soundly rejected that contention. Rather, employers can continue to negotiate settlements of discrimination allegations and include conditions of dismissal of lawsuits and releases of all claims and courts should not consider it a retaliatory action.

At the age of 60, after working for Anchor Hocking for over 41 years, Darrell Bresler was terminated. Earlier in the year, the company shut down its operations …

Ninth Circuit holds that inclusion of state law disclosures violates the FCRA’s “stand-alone” Requirement

The Fair Credit Reporting Act (FCRA) requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report. Because neither of these requirements are defined in the statute, they have been the subject of almost constant litigation in recent years. Most notably, the 9th Circuit has led the way in finding that an employer’s inclusion of a liability waiver in its disclosure …

NLRB overrules Obama-era precedent for independent contractor test

On Jan. 25, 2019, the National Labor Relations Board (NLRB) addressed its independent contractor test in a case involving airport shuttle drivers for the franchise, SuperShuttle. The SuperShuttle DFW, Inc. decision overruled the NLRB’s 2014 decision in FedEx Home Delivery, which the Board criticized as incorrectly limiting the significance of a worker’s entrepreneurial opportunity for economic gain in determining independent contractor status.…

NLRB reverses Obama board trend on expansion Of Section 7 rights

After years of expanding Section 7 rights during the Obama administration, the NLRB earlier this month began reining in the protection afforded to employee complaints in a 3-1 decision in Alstate Maintenance, LLC. In Alstate, a Kennedy International Airport skycap, Trevor Greenidge, refused to assist an arriving soccer team with their baggage and equipment, telling his supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” When a van carrying the team’s  equipment arrived, airline managers motioned for the charging party and three co-workers to assist. Instead, they walked away and did not …

Bureau of Consumer Financial Protection issues revised FCRA summary of rights form

Section 301 of the federal Economic Growth, Regulatory Relief and Consumer Protection Act, which was signed into law on May 24, 2018, amended the Fair Credit Reporting Act (FCRA), effective Sept. 21, 2018, to require consumer reporting agencies (such as those that employers use for applicant and employee background check purposes) to include new language on the Summary of Rights form that explains a consumer’s right to obtain a security freeze to protect against identity theft. The statutory language states that “a security freeze shall not apply to the making of a consumer report for use of the following: … …

Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases

Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.

The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination …

U.S. Department of Labor issues new opinion letters covering FMLA and FLSA issues

On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA
  • Organ donors’ qualification for FMLA leave
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform
  • Application of the movie theater overtime exemption to a movie theater that

Sixth Circuit holds that employer was not required to extend lunch breaks for exercise as reasonable accommodation

Many people exercise daily, and for Shannan McDonald, her exercise was prescribed by her physician for her genetic disorder.  McDonald, employed as a receptionist for UAW-GM Center for Human Resources (CHR), regularly exercised in her employer’s on-site gym during her lunch break.  Per the collective bargaining agreement that covered her employment, each year CHR permitted employees to elect annually whether to take a 60 minute lunch break or a 30 minute lunch break with two other 15 minute breaks. The election remained in place for the entire year following election. McDonald chose the 30 minute lunch break.…

More news from the NLRB on work rules

The Obama-era NLRB sometimes gave employers fits with decisions and guidance concerning employer work rules. It was common for the Obama-era Board to strike down fairly common, neutral work rules, often based on the idea that employees might interpret the rules to restrict employee rights. It did not take long for Trump-era NLRB appointees, however, to put their stamp on National Labor Relations Act law (see our article about some early actions by Trump NLRB appointees). The current members of the NLRB and the NLRB General Counsel are clearly inclined to give employers more latitude when drafting work rules. Following …

U.S. Supreme Court rules that public sector unions may no longer collect fees from nonmembers

On Wednesday, June 27, 2018, the United States Supreme Court ruled in a 5-to-4 decision that the application of public sector union fees to nonmembers is a violation of the nonmembers’ First Amendment rights. The Court’s decision in Janus v. AFSCME overturns precedent established in a 1977 Supreme Court decision, Abood v. Detroit Board of Education, where the Court allowed the collection of union fees from nonmembers for collective bargaining related costs, excluding lobbying and political expenses. In overturning the decision, the majority in Janus held that Abood was “poorly reasoned” and an “anomaly in…First Amendment jurisprudence.” The court’s decision …

Recent Supreme Court decision holds that FLSA exemptions are to be construed fairly

Many thanks to Arslan Sheikh for his assistance in preparing this post.

In a decision issued on April 2, 2018 the Supreme Court of the United States held in Encino Motorcars, LLC v. Navarro that service advisors at an auto dealership are exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement. Most importantly, the Court also rejected the 9th Circuit’s holding and Department of Labor policy that FLSA exemptions should be construed narrowly. Instead, courts should apply a fairness test to determine whether a particular job is covered under the exempt classifications of the act. As a result, …

Second Circuit holds that Title VII prohibits sexual orientation discrimination

In a landmark decision, the 2nd Circuit Court of Appeals in Zarda v. Altitude Express, Inc., en banc, became the second federal appellate court to hold that Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)), which makes it unlawful for employers to discriminate on the basis of sex, also prohibits discrimination on the basis of a person’s sexual orientation. It appears that the defendant does not intend to seek Supreme Court review. Therefore, employers subject to Title VII, particularly those in the Second Circuit (i.e., Connecticut, New York and …

NLRB discards Obama-era decisions

After Republicans regained control of the majority seats on the National Labor Relations Board (NLRB or the board) for the first time in nearly nine years, the majority has swiftly reset the board’s tone. Recently, the NLRB has been busy taking steps to undo some of the more labor and employee friendly standards and opinions that were implemented under the Obama Administration. The result is a return to what many employers would consider to be a common sense approach.…

D.C. Federal Judge vacates the EEOC’s Workplace Wellness Program Rules, effective Jan. 1, 2019

On Dec. 20, 2017, a D.C. federal judge held that the Equal Employment Opportunity Commission (EEOC)’s workplace wellness program rules – which permit employers to incentivize employees who participate in workplace wellness programs—will be vacated on Jan. 1, 2019. The judge held that the EEOC failed to provide a reasoned explanation for the rules, which he believed violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) without a reason for permitting an exception to the normal rules prohibiting disability-related inquiries, medical examinations and requesting genetic information. The judge further ordered the EEOC to promulgate any …

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