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

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 might comply with federal laws regulating political expression in the workplace and Ohio laws regarding voting leave.
Continue Reading Above the fray: The employer’s how-to guide on navigating the election season

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

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 to union avoidance and employee relations, as long as the attorney does not communicate directly with non-supervisory employees. For example, this injunction means that an attorney may lawfully, without reporting, prepare documents and speeches for an employer’s use during union organizing, train managers and supervisors through seminars, and develop personnel policies and practices for an employer to implement.

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

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. Examples of activities that will have to be reported under the new rule include:

  1. Planning, directing  or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees
  2. Providing material or communication for dissemination to employees
  3. Conducting a union avoidance seminar for supervisors and other employer representations
  4. Develop or implement personnel policies, practices, or actions for the employer that are intended to influence or persuade employees regarding their rights to engage or abstain from engaging in union organizing activities


Continue Reading Important update regarding DOL’S new “Persuader Rule”

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

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

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 waiver was subject of a recent United States District Court of the Southern District of New York decision in Foster v. City of New York, 14 Civ. 4142 (SDNY Feb. 5, 2016) and a related case De la Cruz v. City of New York, 14 Civ. 9220 (SDNY Feb. 5, 2016).
Continue Reading Lawyers’ FLSA advice may be discoverable

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 a Fact Sheet relating to joint employment under the Fair Labor Standards Act (FLSA), as well as a Fact Sheet relating to joint employment under the Family Medical Leave Act (FMLA). Although the definition of joint employment under these acts has not changed, the DOL’s interpretation of the definition is expanding, and employers can expect that more of them will be subject to claims under the FLSA and FMLA in joint employment situations.

Continue Reading DOL joins NLRB in making joint employment an enforcement priority

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