Cropped shot of a man and woman completing paperwork together at a deskEffective Dec. 20, 2021, the federal Fair Chance to Compete for Jobs Act will prohibit federal contractors from inquiring-either directly or through a background screening process-into an applicant’s criminal background until after the contractor extends a conditional job offer to the applicant. The law will only impact those applicants seeking employment in positions related to

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 for the purpose of collective bargaining or other mutual aid or protection.” That can include raising work-related disputes or complaints. This right extends to all non-management employees, not just those represented by a union. But what if the employee raising specomplaints uses obscene or otherwise offensive language directed at a supervisor? In some NLRB cases, employee outbursts that have included offensive language have been shielded from punishment by the employer because the language was considered a part of protected speech.
Continue Reading NLRB invites businesses to provide feedback on when an employee’s offensive comments should lose the protection of federal labor law

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 customers in the parking lot of a store in Portsmouth Virginia. The nonemployee union representatives were there to solicit customer support for the union’s protest over a decision to close the store and relocate employees to a different location 25 miles away.

The administrative law judge who initially heard the case ruled in favor of the union, noting that the grocery store’s managers had previously allowed several charitable entities to distribute literature and sell goods outside the store’s entrance. Applying Sandusky Mall Co., 329 NLRB 618 (1999), the administrative law judge held that Kroger violated the NLRA and discriminated against the union by regularly granting access to company property to civic, charitable and promotional activities by nonemployees while prohibiting nonemployee union representatives from petitioning on company property.
Continue Reading NLRB sides with Kroger’s action to remove union representatives from company property

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

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 Commission (Texas’ EEOC equivalent) claiming sexual harassment and retaliation. While that charge was pending, Davis was terminated. She claimed it was  for failing to report to work due to a church commitment. After her termination, Davis attempted to raise the issue of religious discrimination in the ongoing Texas Workforce Commission investigation, but she did not add it to the actual charge. Shortly thereafter, she filed a lawsuit in federal district court alleging sexual harassment, retaliation, and religious discrimination under Title VII.
Continue Reading United States Supreme Court makes it easier to get discrimination cases into court