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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 …

NLRB establishes new standard for evaluating employee handbook policies

The new Republican-led National Labor Relations Board (NLRB) has wasted little time in reconsidering decisions made during the Obama Administration. In its Boeing, Inc., decision, announced on Thursday, Dec. 14, 2017, the board overturned its Lutheran Heritage Village-Livonia decision that has guided its evaluation of employee handbook policies for the past 13 years and most recently has come under intense criticism from the employer community for chipping away at common employee handbook policies.

New top lawyer for NLRB signals change

Peter Robb is President Trump’s new General Counsel for the National Labor Relations Board (NLRB). He was confirmed by the Senate in November. The General Counsel is the top lawyer guiding NLRB enforcement activity. Direction from the General Counsel’s office influences how NLRB Regional Directors enforce the law and has a significant impact on legal issues facing union, as well as non-union, companies. In a memo issued on December 1 to all of the NLRB Regional Offices around the country, Mr. Robb signaled his intention to systematically change many of the more controversial labor law enforcement initiates pursued by the …

Non-union employers may have to allow employees “representation” in some investigation interviews

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

Presume your workplace is non-union. You are interviewing an employee about facts that might lead to disciplining her. She tells you she wants a co-worker to sit in on the interview as her representative to advise her. The lawyers that advise the National Labor Relations Board (NLRB) are taking the position that you have to allow it.

Last week, the office of the general counsel to the NLRB issued an advice memorandum that has significant implications for all non-union employers. The memo concludes that an employee in a …

President Trump nominates Peter Robb to serve as general counsel to the National Labor Relations Board

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

Last week, President Trump nominated Peter Robb, a management-side labor attorney, to serve as general counsel to the National Labor Relations Board (NLRB). As the top lawyer for the NLRB, the general counsel has a great many responsibilities, which include giving advice to the regional offices of the NLRB concerning enforcement issues. The advice is often communicated in advice memoranda. These advice memos are critical because they advise the regional offices on how to interpret and to enforce labor law. It is the regional offices that process unfair …

Texas district court strikes down Obama DOL’s proposed overtime rule

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

Last week, a federal judge in Texas struck down a proposed Obama-era rule that would have expanded the number of workers who qualify for overtime pay under the Fair Labor Standards Act (FLSA).

The proposed rule

In 2016, the Obama administration’s Department of Labor (DOL) planned to implement a new rule that would have more than doubled the minimum salary threshold for “exempt” status under the FLSA from $23,660 to $47,476 per year. Under the DOL’s proposed rule, an employee who made an annual salary below $47,476 would …

Courts in Massachusetts and Rhode Island permit medical marijuana users to pursue disability discrimination claims

Recent decisions from the Massachusetts Supreme Judicial Court and a Rhode Island Superior Court have held that a discharged employee and a rejected applicant, both of whom tested positive for marijuana, may pursue disability discrimination claims under state law. These are among the first decisions issued that address whether employers have a state law obligation to reasonably accommodate the medical marijuana use of their disabled employees and applicants.

Because marijuana use – whether for medicinal or recreational purposes – remains unlawful under federal law, employers have no obligation under the Americans with Disabilities Act to reasonably accommodate its use by …

OSHA proposes delay to electronic injury reporting requirement and no mechanism in place on OSHA’s website for electronic reporting compliance

The compliance deadline for Occupational Safety and Health Administration’s (OSHA) electronic injury and illness reporting rule has come and gone, and there is no mechanism in place for employers to electronically report work-related injuries and illnesses. On June 27, 2017, OSHA proposed moving the July 1, 2017 mandatory compliance deadline to Dec. 1, 2017. The window for public comment on the proposed delay closed on July 13th. At present, the “proposed delay” remains a “proposal,” but, even so, OSHA does not yet have the mechanism in place for compliance with the electronic reporting requirement.

For many years, OSHA required employers …

Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute

In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the …

The return of Department of Labor Opinion Letters

On June 27, 2017 the U.S. Department of Labor (DOL) announced it would reinstate the practice of issuing Opinion Letters. The Wage and Hour Division will once again use Opinion Letters to provide guidance to employers and employees on various topics.

Under the Obama Administration, the DOL stopped issuing Opinion Letters in favor of the more broad “Administrator Interpretations.” Between 2010 and 2016, the DOL only published 11 Administrator Interpretations. Two of these 11 Interpretations were recently rescinded, as we previously reported.…

Department of Labor rescinds recent joint employer guidance

On June 7, 2017 the Secretary of Labor, Alexander Acosta, announced that the US Department of Labor (DOL) was withdrawing its 2015 and 2016 guidance on joint employment and independent contractors. The Obama-era guidance expanded how joint employment was defined to include employers that have indirect or potential control over the terms and conditions of employment, as we previously reported. By moving away from this guidance, the DOL returns to the previous direct control standard. The move also rescinds an Interpretation Letter stating the DOL would broadly define “employee” under the Fair Labor Standards Act (FLSA) and that most …

“Can you hear me now?” NLRB judge calls on Verizon to remove restrictive handbook policies

Employers beware…it may be time yet again to review your handbooks to make sure that your policies do not violate the National Labor Relations Act (NLRA). A National Labor Relations Board (NLRB) judge recently ordered several Verizon Wireless stores to strike certain employee handbook policies.  In all, the decision means Verizon Wireless must strike 10 employee handbook policies that violated the NLRA because they could be read to chill employees’ rights to engage in protected concerted activity.

Section 7 of the NLRA grants employees the right to engage in concerted activity for the purpose of mutual aid and protection. …

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

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