Legal Alerts Archive
- Boeing Co. Signals The End Of Lutheran Heritage And Its Progeny12.15.17
The National Labor Relations Board just relieved employers of a great deal of uncertainty surrounding seemingly innocuous workplace rules and handbooks. The newly constituted NLRB issued its first round of significant decisions this week, taking square-aim at controversial doctrines developed during the past eight years. One target in its sights: the Board’s interpretation of Lutheran Heritage, the seminal 2004 decision involving workplace civility rules.
In the clearest sign yet that the National Labor Relations Board is ready to shift away from the strong pro-union stance that had been taken for the previous eight years, the agency today announced that it will seek public comment on the possible revision to the representation election regulations – often known as the “quickie election” rule. The 2014 rule was considered by some to be the crowning achievement of the Obama-era Labor Board, dramatically compressing the election timeframe and thereby tilting the scales in favor of unions. Now that the Board is led by a majority of Republican appointees, it appears ready to substantially revise the election rules once again, but this time with an eye toward evening the playing field.
A bipartisan group of federal legislators has turned their attention to the sweeping revelations of sexual harassment in the American workplace by introducing a bill that would prevent employers from forcing claims of sex discrimination or harassment into arbitration. If passed and signed into law, this legislation could have a profound impact on employment policies and practices, not to mention litigation that results from workplace conflicts. What do employers need to know about the Ending Forced Arbitration of Sexual Harassment Act?
It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes each month in 2017. November was no different, with so many significant developments taking place during the month that we were forced to expand our monthly summary beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 14 stories from last month that all employers need to know about:
If you have been following recent comments by Attorney General Jeff Sessions in an attempt to predict marijuana policy under the Trump Administration, you might be left scratching your head. In recent comments before Congress, Sessions seemed to provide a clear indication that the federal government would not soon change course to ramp up enforcement of federal anti-marijuana law. Then, just last week, Sessions seemed to suggest that his Justice Department might soon take a tougher enforcement stance on recreational marijuana – something of particular interest to the growing list of states that have legalized recreational marijuana.
The newly installed General Counsel for the National Labor Relations Board published a memorandum late last week indicating that the General Counsel is preparing to push to reverse many of the controversial positions taken during the Obama era, restoring much-needed balance and tilting the labor law playing field back to a reasonable level. Peter Robb’s December 1 memo is a harbinger of significant changes to the agency’s enforcement posture going forward, and should give hope to employers across the country – not just those with unionized workforces – that change will soon be on the way.
- 3 Things Employers Need To Know About Landmark LGBT Ruling11.29.17
The federal watchdog agency that oversees federal antidiscrimination law just scored a milestone victory when a judge awarded $55,500 to a telemarketer who alleged to have been forced off the job because of sexual orientation discrimination. The November 16 decision brings to an end one of the first cases brought by the Equal Employment Opportunity Commission (EEOC) on the theory that Title VII – the federal law prohibiting job discrimination based on “sex” and other protected classes – also prohibits LGBT bias. It also marks the first time that a lawsuit brought by the EEOC on this theory has led to a successful judgment, and should serve as an eye-opener for employers across the country.
In a solid win for New York City employers, the New York Court of Appeals held that a worker cannot bring a disability discrimination claim under New York City law based solely on a perception of untreated alcoholism. Through its holding, the state’s highest court foreclosed the courtroom doors to a class of employees and applicants who would otherwise have claims under city law, although the ruling may spur the City Council into revising the law in employees’ favor (Makinen v. City of New York).
New York City’s Fair Workweek Law takes effect on November 26, 2017, thereby limiting the scheduling options and reducing the flexibility of retail and fast food employers. Not to be outdone, New York State is about to add additional restrictions regarding on-call practices statewide. On November 10, Governor Cuomo proposed statewide regulations targeting “on-call” scheduling. The regulations seek to curb employers’ ability to require an employee to be available to work only if needed, and to either contact the employer or wait to be contacted by the employer about whether to report to work – even if just shortly before the shift is scheduled to start.
The Oregon state agency charged with enforcing the state’s wage and hour laws has announced the largest civil penalty against an employer in its long history – nearly $277,000. According to the Oregon Bureau of Labor and Industries (BOLI), Portland’s Legacy Emanuel Medical Center will be forced to pay over a quarter-million dollars to resolve allegations that many of the organization’s workers were not receiving mandatory meal periods and paid breaks in accordance with state law. What can other Oregon employers learn from this situation to avoid a similar fate?
- Translation: Sick SCOTUS Burn Over Hyper-Technical Legal Distinction Involving Boring Lawyer Stuff11.8.17
In a unanimous decision, the U.S. Supreme Court ruled today that a federal procedural rule that allows a district court to extend an appeal deadline by no more than 30 days is a non-jurisdictional, mandatory claims processing rule. While this is a generally inconsequential decision when it comes to workplace law, it is a decision about which every litigant and participant in the judicial system should be aware, as it could impact litigation options and strategy. While this decision might potentially lead to a slight uptick in extension requests from pro se plaintiffs and overall delays in commencing appeals, it may also have a marginal impact on appellate litigation (Hamer v. Neighborhood Housing Services of Chicago, et al).
By a vote of 242 to 181, the House of Representatives passed the “Save Local Business Act” today, a bill that would significantly narrow the definition of “joint employment” and limit employers’ wage and labor problems. HR 3441 will now move to the Senate, and if it passes a vote there and receives the signature of the president, it will significantly reduce the risk of unwarranted legal claims based on a claim of joint employment.
The latest tool that can be used against employers is now fully operational. The Equal Employment Opportunity Commission’s (EEOC’s) online filing portal, or Public Portal, which was tested in five cities over the past six months, was just rolled out across the entire country. As of November 1, individuals will be able to initiate discrimination charges against employers using the EEOC’s digital platform. What do employers need to know about this 21st-century development?
New York City’s Department of Consumer Affairs (DCA), the agency tasked with enforcing the city’s new “Fair Workweek Law,” recently issued proposed rules to implement the legislation and provide guidance to covered employers and workers. Given that the law is scheduled to take effect in just a few weeks on November 26, 2017, you should familiarize yourself with the relevant statutes and examine the proposed regulations so that you are in a position to be in full compliance.
- Workflex In The 21st Century Act Would Solve Local Law Patchwork Problem11.3.17
If a proposal introduced in the U.S. House of Representatives yesterday were to pass Congress and be signed into law by President Trump, the country’s employers would find themselves facing the first-ever federal paid leave act. There’s good news, however: employers would choose whether to opt in to the paid leave program, and if they do, they would receive a safe harbor ostensibly absolving them from complying with state and local paid leave laws.
It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes each month in 2017. October was no different, with so many significant developments taking place during the month that we were forced to expand our monthly summary beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 11 stories from last month that all employers need to know about.
The National Labor Relations Board (NLRB) recently announced that it negotiated a $21.6 million settlement on behalf of the International Brotherhood of Teamsters to settle allegations that VIUSA, Inc. refused to hire a group of Teamster-represented workers at the Ford Motor Company assembly plant in Louisville, Kentucky. According to the October 30 announcement, the NLRB will distribute about $14.4 million in backpay to about 257 workers as payment for VIUSA’s allegedly “casting aside” Teamsters Local 89 employees in favor of United Auto Workers (UAW) employees at lower wages. The remaining $7.2 million will go to the Teamsters Central States Pension Fund to compensate for missed benefit contributions.
- ALJ Rules Broad Confidentiality and Texting Rules Lawful10.23.17
Employers who have been keeping up with the NLRB's decisions over the past eight years may be pleasantly shocked to learn that an Administrative Law Judge (ALJ) just upheld an employer’s seemingly broad rule providing that “all documents are considered confidential” and are not to be “taken off the premises.”
For the third time this year, a federal district court has blocked a presidential travel ban from taking effect. Judge Derrick K. Watson, from the District of Hawaii, today granted a motion for a temporary restraining order that bars the federal government from enforcing President Trump’s September 24 travel ban (Travel Ban 3.0) on a national level, once again setting up a showdown at the 9th Circuit Court of Appeals and possibly the U.S. Supreme Court.
- Banning The Box And Prohibiting Pay History Inquiries Among New State Laws10.16.17
California employers will soon need to adjust themselves to a new reality once again as a number of new workplace restrictions have been passed by the state legislature and just signed into law by Governor Jerry Brown. State lawmakers were quite active this year, with almost 2,500 bills introduced and over 1,000 making it to the Governor’s desk. Of those approved by yesterday’s October 15 deadline, a substantial number relate to the workplace, and several will be quite significant for employers.
The Department of Health and Human Services (HHS) just issued new rules which will limit the contraception coverage mandate covering employers under the Affordable Care Act (ACA). The new rules, released Friday, expand the range of employers and insurers that can invoke religious or moral beliefs to avoid the ACA’s requirement that birth control pills and other contraceptives be covered by insurance as part of preventive care.
Attorney General Jeff Sessions formally reversed the federal government’s position on whether transgender workers are covered by Title VII of the Civil Rights Act, informing all U.S. Attorneys and heads of all federal agencies that the Department of Justice (DOJ) no longer believes that the antidiscrimination statute provides such coverage.
If you are the kind of person who gets excited by hot-button legal topics and monumental court decisions, this is the Supreme Court term for you. The SCOTUS kicked off their 2017-2018 term several days ago by hearing arguments in a critical workplace law case, and the hits will keep coming for the remainder of the term. After a rather boring session in 2016-2017, the Court has teed up a variety of juicy labor and employment cases that, once decided, promise to reshape the way you interact with your employees in the future.
It’s hard to keep up with all the recent changes to labor and employment law. The law always seems to evolve at a rapid pace, and September 2017 was no different. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 10 stories from last month that all employers need to know about.
A New Jersey appeals court recently ruled that a volunteer firefighter was not an “employee” of the volunteer fire company from which he was expelled, rejecting his whistleblower claim and strictly interpreting the state’s statute. The September 13, 2017 ruling should offer guidance to New Jersey employers regarding whether true “volunteers” are protected under the state’s Conscientious Employee Protection Act, commonly known as “CEPA” (Sauter v. Colts Neck Volunteer Fire Company No. 2).
In a move that must have labor unions across the country trembling with fear, the Supreme Court today announced that it will once again take up the issue of whether public sector agency shop fee arrangements are prohibited by the First Amendment. If the Court rules as expected and strikes down these common arrangements, it would be a big blow to the influence that labor has across the country (Janus v. American Federation of State, County, and Municipal Employees, Council 31).
President Trump signed a new and revised “travel ban” over the weekend, soon after the expiration of his second temporary travel ban. This latest executive order, signed on September 24, more directly targets individuals from a new list of seven countries and will create a new travel ban beginning October 18. What do employers need to know about Travel Ban 3.0?
In a long-anticipated move, the United States Department of Education Office for Civil Rights withdrew the Obama Administration’s 2011 Dear Colleague Letter on Sexual Violence this morning, as well as its Questions and Answers on Title IX and Sexual Violence. It also issued a replacement “Q&A on Campus Sexual Misconduct,” which will provide institutions with guidance on an interim basis pending formal regulations to be issued by the Department.
The past year has brought multiple new workplace laws that will require employers in Washington to change several key policies and procedures. Here is an update that provides a general overview to help you prepare for these new laws, in the order of the effective dates of each law.
It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes each month in 2017. August was no different, with so many significant developments taking place during the month that we were forced to expand our monthly summary beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 11 stories from last month that all employers need to know about.
This list of frequently asked questions was originally prepared by the law firm of Fisher Phillips in 2005, in response to Hurricanes Katrina, Rita and Wilma. It has been updated several times over the course of the past 12 years, most recently in the aftermath of Hurricane Harvey striking Texas and Louisiana in August 2017, and in anticipation of Hurricane Irma striking Florida in September 2017.
Attorney General Jeff Sessions announced earlier today that the Department of Homeland Security will immediately “wind down” the Deferred Action for Childhood Arrivals (DACA) program. This action will affect almost 800,000 young people in the United States by ending their temporary protection under deferred action and their ability to hold proper work authorization. This announcement has received widespread attention in the news media, but what does it mean for the nation’s employers?
A federal judge in Texas today struck down the controversial Obama-era change to the federal Fair Labor Standards Act that was intended to substantially raise the minimum salary threshold required for employees to qualify for the “white collar” exemptions. This signifies another nail in the coffin for the so-called “overtime rule,” which was originally blocked in late November 2016, and has since faced a very uncertain future given the subsequent change in White House leadership.
A federal court in the District of Columbia recently told the Equal Employment Opportunity Commission (EEOC) to reconsider two of its recent regulations surrounding incentivizing participation in employer-sponsored wellness programs. Despite the decision against the EEOC, employers should be aware that the rules will be kept in place for the time being to avoid “disruption and confusion.” While you should keep the status quo for now, this situation bears monitoring in the near future to see whether a wholesale change takes place at some point in the near future.
- Employers’ Pay Data Reporting Halted – For Now8.30.17
The Office of Management and Budget (OMB) announced late Tuesday that it was implementing an immediate stay of the revised EEO-1 Report, putting a halt to long-awaited pay data reporting requirements. The stay creates much needed relief for employers, but is expected to further refocus pay equity discussions on a statewide and local level.
- NBA’s Timberwolves Foul Out In Front Of NLRB8.28.17
In a ruling sure to leave businesses and gig economy companies crying foul, the National Labor Relations Board concluded that workers producing electronic video display content for the NBA’s Minnesota Timberwolves were misclassified as independent contractors and are actually employees. The Board’s 2-1 decision, announced on August 18, is a setback for businesses seeking certainty in their classification decisions, and is a reminder that the current roster of Labor Board members remains decidedly pro-worker and pro-union. Until the Board is comprised of a majority of Republican appointees, businesses need to be wary in their approach to classification situations (In re Minnesota Timberwolves Basketball LP).
The Kentucky Supreme Court ruled today that wage and hour class actions for unpaid wages may be maintained in the state, the first-ever time such lawsuits have been ruled viable. The court’s decision concludes more than a decade of uncertainty surrounding the proper interpretation of the Kentucky Wages and Hours Act, and opens the door for significantly greater liability for Kentucky employers in the future (McCann v. Sullivan University System, Inc.).
The 5th Circuit Court of Appeals recently became the second federal appeals court this year to hold that an employer’s rule prohibiting recording in the workplace violates the National Labor Relations Act (NLRA). In a July 25 decision, the court agreed with the National Labor Relations Board that such a rule could discourage unionizing or other protected activity. This case is yet another reminder that employers need to tread carefully when it comes to personnel policies restricting audio and video recording (T-Mobile USA, Incorporated v. NLRB).
There’s good news for Oregon employers about the recently concluded 2017 legislative session: unlike years past, there were only a very small number of workplace laws passed. In fact, the Oregon Legislature only passed four pieces of workplace legislation that are even worth discussing.
There’s a downside, however. The significance of at least two of these new laws is fairly profound, and will almost certainly change the way you do business. This update will get you up to speed on the new laws so you can begin making necessary adjustments.
Higher education institutions felt seismic shockwaves yesterday as the New York Times reported that the Trump administration would soon redirect Justice Department resources toward investigating – and possibly suing – colleges and universities over their affirmative action admissions policies. Although the state of affirmative action policies has evolved over the past several decades, never before has such a stark and dramatic shift in the landscape been proposed. What do you need to know about this development? Here are answers to some of the most frequently asked questions about this news.
It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes each month in 2017. July was no different, with so many significant developments taking place during the month that we were forced to expand our monthly summary beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 12 stories from last month that all employers need to know about.
- Massachusetts Finalizes New Pregnancy Workplace Law: What to Expect When Your Employees Are Expecting7.27.17
Massachusetts just joined 21 other states and the District of Columbia by enacting a comprehensive pregnancy workplace law with unanimous support from the legislature, employee advocates, and the Massachusetts business community. Today, Governor Charlie Baker signed the Pregnant Workers Fairness Act (PWFA), which will take effect (appropriately enough) in about nine months – on April 1, 2018.
Employers across the country should collectively cross their fingers and hope that HR 3441, also known as the “Save Local Business Act,” becomes law in the near future. The bill, introduced in the House of Representatives this morning, would significantly narrow the definition of “joint employment” to eliminate existing workplace law headaches when it comes to federal wage and hour law and traditional labor law. If passed, it would significantly reduce the risk of unexpected and unwarranted legal claims in any business model where a claim of joint employment is a possibility.
The state legislature recently enacted the Nevada Pregnant Workers’ Fairness Act (NPWFA) to expand the scope of protection for employees and applicants. The NPWFA is based on the federal Pregnancy Discrimination Act (PDA), and is also strongly influenced by the American with Disabilities Act (ADA). It applies to employers in the state with 15 or more employees, as well as to state and local governments. Although many portions of the Act are not effective until October 1, 2017, the notice provisions took effect on June 2. If you are not yet familiar with this new law, the time to educate yourself is now.
Although the federal Fair Labor Standards Act (FLSA) already protects nursing mothers from employment discrimination and retaliation while requiring employers to provide them with reasonable break time and a private space to express breast milk, Nevada has taken things a step further. The state just enacted a broad new nursing mothers law for all public and private employers, other than the Department of Corrections, certain small employers, and certain licensed contractors.
The Nevada Supreme Court has long recognized the legality of non-compete agreements between employers and employees. Recently, however, the Nevada state legislature updated the rules on non-compete agreements, specifying how employers should draft their provisions and preventing employers from restricting former employees from providing services to customers or clients. If you use a non-compete agreement in Nevada, it is critical to review that agreement and determine if revisions are necessary.
Many legitimate reasons exist to explain differences in compensation within a company, such as job qualifications and prior experience. Although employers may wish to maintain the privacy of this information, they could face legal consequences if they prevent employees from discussing their wages. Under the National Labor Relations Act (NLRA), employers cannot discriminate against non-supervisory employees when they discuss their wages as part of a “concerted activity,” regardless of whether they are unionized. Similarly, in 2014, the Obama administration issued an executive order prohibiting discrimination from federal contractors against employees or applicants who inquire about, discuss, or disclose their wages.
By the turn of the New Year, employers in Nevada will have an obligation to provide workplace protections to domestic violence victims, including time off from work. Starting January 1, 2018, Nevada employees will be entitled to leave above and beyond what may already be owed to them under the federal Family and Medical Leave Act (FMLA). Employers should begin preparing for this change to the law, revising policies, practices, and training sessions to reflect the change.
The U.S. Department of Labor plans to propose a full rescission of the controversial tip-pooling restrictions impacting employers who pay tipped employees the full minimum wage directly sometime in August, according to a regulatory agenda published this morning. This news should come as a welcome relief to employers in the hospitality industry, especially those operating in the 9th Circuit – which includes the states of California, Nevada, Washington, Arizona, Oregon, Idaho, Montana, Hawaii, and Alaska – where a divisive 2016 appellate court decision has operated the last several years to handcuff a substantial number of businesses.
The San Francisco Board of Supervisors has just added two new employment ordinances to the burgeoning list of employment-related ordinances in the City by the Bay. First, the Parity in Pay Ordinance prohibits employers from inquiring about an applicant’s salary history. The second ordinance, the Lactation in the Workplace Ordinance, requires employers to provide accommodations to nursing mothers.