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Labor Board Makes It Harder For Employees To Claim Their Complaints Are Protected

Fisher Phillips • January 20, 2019
In a 3-1 ruling that should be hailed by employers across the country, the National Labor Relations Board just made it harder for employees to successfully claim that their workplace gripes constitute protected concerted activity. The January 11 decision (Alstate Maintenance, LLC) reverses a 2011 Obama-era decision that was widely derided as tilting the playing field too far in favor of employees. Under that precedent, essentially any employee complaint made to management in the presence of coworkers was sufficient to qualify as protected concerted activity under the National Labor Relations Act (NLRA). Under Alstate Maintenance, however, the NLRB has returned to the more stringent standard whereby only those complaints that seek to initiate group action, or that involve truly “group” complaints, will be considered protected concerted activity.

Judges Block Trump Administration's Attempt to Limit Contraceptive Coverage

XpertHR • January 20, 2019
A pair of federal judges have blocked the Trump administration's new rules that would have made it easier for employers to refuse to offer birth control coverage for moral or religious reasons.

It’s Official: OIRA Has Received Proposed Part 541 Overtime Regulations

Ogletree Deakins • January 20, 2019
The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) officially sent its notice of proposed rulemaking (NPRM) to revise the Part 541 regulations to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) for review. The OIRA website states that it received the Part 541 NPRM on January 16, 2019, and that the proposal is “economically significant.” At this juncture, it is not known what the Part 541 NPRM contains or how long OIRA will take to review the proposed rule before it can be returned to the DOL for publication in the Federal Register.

Beltway Buzz, January 18, 2019

Ogletree Deakins • January 20, 2019
“Snurlough.” Today is day 28 of the partial government shutdown. A bigger-than-expected snowstorm that hit the D.C. region this past weekend led to a Monday in which the federal government was both closed and (partially) shut down—a “Snurlough.” As the Buzz has reported in the last few weeks, there is no end in sight for the longest government shutdown in history. Indeed, earlier this week, an effort to reopen the government pursuant to a fast-track legislative process in the U.S. House of Representatives failed to garner the necessary votes.

Minimum Wage Hike Proposed: How Likely Is A Bump In Pay?

Fisher Phillips • January 20, 2019
Some lawmakers have plans to raise the federal Fair Labor Standards Act's minimum wage from $7.25 to $8.55 later this year, then step it up to $15.00 per hour by 2024, and subsequently increase it annually in relation to statistical data from the Bureau of Labor Statistics. If this sounds familiar, it should, but we expect some more traction this time around.

5 Workplace Diversity Mistakes Your Organization May be Making

XpertHR • January 20, 2019
“You’ve come a long way baby”

OSHA Penalties Increasing Once the Government Reopens

Jackson Lewis P.C. • January 20, 2019
While much of the rest of the government is shutdown, the Department of Labor (“DOL”) is hard at work. OSHA which is an agency within DOL is one of the few agencies that is fully funded and operational. On January 15th, OSHA issued a pre-published version of its Federal Register notice for the increase in civil penalties for violations of OSHA standards and regulations to adjust for inflation.

Report: Union Representation Numbers Remain Low

Jackson Lewis P.C. • January 20, 2019
Once again, the percentage of private sector union-represented workers fell – to 6.4% in 2018, from 6.5% in 2017, according to the Bureau of Labor Statistics of the U.S. Department of Labor.

OFCCP Looking to Hire for Ombudsperson

Jackson Lewis P.C. • January 20, 2019
As OFCCP heads into 2019, with an official Director in place, the Agency is looking towards implement many of its new Directives released in the second half of 2018. Back in September, we discussed OFCCP Directive 2018-09: OFCCP Ombud Service, one of the number of policy changes OFCCP hoped to develop to increase a sense of transparency and impartiality between it and government contractors. On December 21, OFCCP took the first step in following through on this plan by posting an opening for the Ombud position.

What Can Employers Expect in 2019?

FordHarrison LLP • January 17, 2019
Despite the current U.S. government shutdown, many aspects of the federal government continue to operate, including the federal court system. This Alert highlights some of the legal, legislative and administrative developments that may impact employers in 2019.

Federal Government Shutdown Effect on Employers

FordHarrison LLP • January 17, 2019
The U.S. Antideficiency Act calls for a partial government shutdown when Congress fails to appropriate annual funds to agencies. As Congress and President Trump cannot agree on appropriations spending, the U.S. government is in the midst of the longest shutdown in U.S. history, which began as of 12:01 on Saturday, December 29, 2018.

PODCAST: Third Thursdays with Ruthie: Talking With Employees About Unions

Ogletree Deakins • January 17, 2019
While employers would universally agree that communication with their employees is essential, opinions vary on whether it makes sense to proactively talk to employees about unions and union representation. In the first Third Thursdays podcast, Ruthie Goodboe will share her thoughts on this important topic.

Share 2018 EEO-1 Filing Process Likely to Be Delayed Due to Government Shutdown

Ogletree Deakins • January 17, 2019
The Equal Employment Opportunity Commission (EEOC) is one of the federal agencies affected by the ongoing partial federal government shutdown. In addition to investigating and processing charges of discrimination, the EEOC also administers the annual EEO-1 filing process through the EEO-1 Joint Reporting Committee. Based on calls to the EEO-1 Joint Reporting Committee helpline, it seems the EEOC had planned to open the 2018 EEO-1 filing website during the second or third week of January 2019, with a planned filing deadline of March 31, 2019. More recent information suggests that the EEOC plans to open the EEO-1 filing website at the end of January 2019, but that is dependent on when the partial shutdown ends.

Top 10 Employer Resolutions for 2019

XpertHR • January 17, 2019
Now that 2019 is underway, many of your employees may be making resolutions to improve their lives in various ways, but resolutions are something that employers (and HR professionals in particular) should also be contemplating.

8 Secrets to Preparing a Successful Job Description

XpertHR • January 17, 2019
Developing and maintaining clear, concise and informative job descriptions is a significant part of the recruiting and hiring process.

What Am I Doing Wrong?? Common FMLA Mistakes (January 17, 2019)

Jackson Lewis P.C. • January 17, 2019
“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. Up until now, the most common mistakes were addressed in this blog. Now that we have hit the twentieth post in this series, we are going to dig a bit deeper into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Before OSHA Arrives: Developing a Culture of Worksite Safety

Goldberg Segalla LLP • January 16, 2019
In daily business practice, one of the most difficult decisions any company leader can make is to change company culture. Despite many company leaders providing a well-thought out strategic plan, the entire collective of company employees ultimately controls company culture.

Here OSHA Goes Again: 2019 Increases to Maximum Penalty Amounts Announced

Fisher Phillips • January 16, 2019
Employers will be facing higher penalties from the federal Occupational Safety and Health Administration (“Fed-OSHA”) in 2019. On January 15, 2019, Fed-OSHA announced that it plans to increase the maximum penalty an employer can be issued for serious and other than serious citations to $13,260, and the highest amount that can be issued for repeat and willful violations to $132,598. Fed-OSHA’s announcement regarding the increases can be found here: and a chart containing all increases by the agency is below:

Will Ending Government Shutdown Turn on DACA?

Jackson Lewis P.C. • January 16, 2019
Is it possible that the Deferred Action for Childhood Arrivals (DACA) program might be the key to ending the government shutdown? A DACA-for-border-funding compromise that was taken off the table a year ago is again being talked about by some lawmakers. Here is an update on where DACA stands.

Family Businesses Face Unique Labor and Employment Challenges

Brody and Associates, LLC • January 15, 2019
Family businesses are a part of the backbone of the United States economy. Their unique structure creates special opportunities and challenges for the family, from a labor, benefits and employment-law perspective.

Lack of Training Deemed Adverse Action

Goldberg Segalla LLP • January 15, 2019
What is an “adverse action”? In the workplace some may think that it is only when someone is fired. However, much more falls under the “adverse action” umbrella. What about denying an employee a training opportunity

Supreme Court Eliminates the "Wholly Groundless" Exception to Arbitration Agreements, Reinforcing the Force of Delegation Provisions

Littler Mendelson, P.C. • January 15, 2019
On January 8, 2019, in a unanimous opinion written by Associate Justice Brett Kavanaugh, the Supreme Court ruled that where parties have agreed to delegate issues of arbitrability to an arbitrator, a court may not override that agreement. The Court explained this is true even where the court believes that a party’s argument that the dispute is within the scope of the agreement is frivolous. The Court’s decision ends a circuit split about whether, when faced with an enforceable delegation provision, courts could still hear arguments about the scope of an arbitration agreement under the “wholly groundless” exception.

E-Verify Procedures During the Government Shutdown

Littler Mendelson, P.C. • January 15, 2019
When the federal government partially shut down on December 22, 2018, so did E-Verify, the online system for verifying a new hire’s eligibility to work. Employers that are obligated to or have chosen to use E-Verify have probably already received this message from the E-Verify website: "NOTICE: Due to the lapse in federal funding, this website will not be actively managed. E-Verify and E-Verify services are unavailable.”

Call for Federal Legislative Changes Growing in the Gig Arena

Fisher Phillips • January 15, 2019
As I wrote previously, it is no secret that labor laws have been unable to keep pace with the changing economy, despite challenges from the bench to address the needs of the gig economy. Certain state legislatures (e.g. Washington) have taken steps to address needs of gig workers, with their ‘Paid Family and Medical Leave’ program expanded to include self-employed workers. And efforts to make portable benefits available to the gig workforce are ongoing, mostly at the state level. However, federal legislative and regulatory entities are seemingly mulling their options and allowing the change to occur from the bottom. Voices from the gig upper strata are becoming impatient, and want immediate legislative change, at the top.

Workplace Class Action Settlement Values Plummeted in 2018

XpertHR • January 15, 2019
The monetary value of the top 10 class action case settlements dropped by more than 50 percent in 2018 and the value of the top 10 government litigation settlements fell by 74 percent despite an increase in the number of workplace class action certifications, according to the 2019 Annual Workplace Class Action Litigation Report.

PODCAST: The Life of an ERISA Claim: Know the Basics and the Pitfalls

Ogletree Deakins • January 15, 2019
In this podcast, Byrne Decker and Steven Silver cover need-to-know basics on the Employee Retirement Income Security Act of 1974 (ERISA), including when ERISA applies, common challenges for employers, and how ERISA claims are litigated. They also discuss issues that may come up for sports industry employers such as handling disability claims involving concussions.

Sixth Circuit Rules That Tennessee Cap on Punitive Damages Is Unconstitutional

Ogletree Deakins • January 15, 2019
In 2011, Tennessee Governor Bill Haslam signed the Tennessee Civil Justice Act, a tort reform measure limiting monetary damages. Tenn. Code Ann. § 29-39-104. This law places a cap on punitive damages of two times the compensatory damages or $500,000, whichever is greater. On December 21, 2018, the U.S. Court of Appeals for the Sixth Circuit ruled in Lindenberg v. Jackson National Life Insurance Company that this damages cap is unconstitutional under the Tennessee Constitution. The Sixth Circuit’s decision has important implications for employment lawsuits filed in Tennessee state and federal courts.

OFCCP Year in Review and What to Expect in 2019

Ogletree Deakins • January 15, 2019
The year 2018 brought increased activity and significant changes to the Office of Federal Contract Compliance Programs (OFCCP), including the appointment of new Director Craig E. Leen and the arrival of 12 new directives.

New Overtime Rule Soon to Make Its Appearance

Jackson Lewis P.C. • January 15, 2019
The DOL’s new overtime rule, intended to replace the rule announced late in the Obama administration but subsequently declared invalid by a federal court, finally has made, or soon will make its way, to the Office of Information and Regulatory Affairs (OIRA), a division of the Office of Management and Budget (OMB), Bloomberg Law has reported. OIRA is responsible for reviewing significant regulations before publication to ensure agency compliance with the principles in Executive Order 12866, which include incorporating public comment, considering alternatives to the rulemaking, and analyzing both costs and benefits.

Longest Government Shutdown In History Is Impacting Workplace Law

Fisher Phillips • January 14, 2019
As of Saturday, the current federal government shutdown became the longest in our nation’s history—and employers are starting to feel the sting. While the peculiarities of the federal budget process meant that this shutdown started out by not hitting the nation’s employers as hard as prior shutdown events, the lingering nature of the event has started to take its toll, and things could get much more difficult in just a few short days. Read on to get a better understanding of how employers are being impacted and what to expect in the coming days (or weeks).

Bargaining Unit Can Still Be ‘Micro’ under ‘Community of Interest’ Standard

Jackson Lewis P.C. • January 14, 2019
After the NLRB adopted a new standard for determining bargaining-unit composition, many expected fewer micro-units would result. PCC Structurals, 365 NLRB No. 160 (2017) (PCC I). However, when the employer filed a request for review (appeal) of the Regional Director’s decision allowing, on remand, a “micro-unit” of its employees to vote on union representation under the new standard, the NLRB denied it. PCC Structurals, Inc., No. 19-RC-202188 (Nov. 28, 2018) (PCC II).

Supreme Court Ruling a Decisive Win for Arbitration Proponents

XpertHR • January 13, 2019
Arbitrators, not judges, should decide if a dispute may be referred to arbitration instead of the courts, the Supreme Court has ruled unanimously. Writing his first Supreme Court opinion in Schein v. Archer & White Sales, Justice Brett Kavanaugh said that when a contract delegates an arbitrability question to an arbitrator, "a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless."

FCRA Disclosures Must Stand Alone, $2.3 Million Delta Airlines Settlement Shows

XpertHR • January 13, 2019
The Fair Credit Reporting Act (FCRA) requires employers that use outside companies to conduct a background check and/or obtain a credit report to, among other things, convey to job applicants their intent to do so with a clear and conspicuous written disclosure.

Salary Increase On Its Way? Proposed "Overtime" Rule Heads To White House

Fisher Phillips • January 13, 2019
The U.S. Department of Labor is moving closer to releasing is proposed changes to the white-collar exemptions a/k/a the infamous so-called "Overtime Rule".

Beltway Buzz, January 11, 2019

Ogletree Deakins • January 13, 2019
Shutdown Stalemate. Today marks day 21 of the partial federal government shutdown. Assuming that no deal is struck today, by tomorrow the shutdown will be the longest in our nation’s history. Unfortunately, it is unlikely that the political public relations gambits from earlier this week have done much to bring the opposing sides any closer to agreement. Members of the business community are now weighing in, and the U.S. Chamber of Commerce is urging legislators to reopen the government, and even use the current crisis as an opportunity to strike a deal on the Deferred Action for Childhood Arrivals and temporary protected status programs.

E-Verify Suspended Due to the Government Shutdown

Ogletree Deakins • January 13, 2019
The holiday season may already feel like a distant memory and five-day workweeks may once again be the norm, but not everything is back to business as usual for U.S. employers this January. E-Verify, the electronic system used by more than 750,000 companies to confirm employment eligibility for new hires, has been temporarily suspended due to a lapse in government funding. As the partial government shutdown nears the three-week mark, many employers are left wondering how the suspension of E-Verify could affect their businesses.

Federal Court of Appeals To Decide Whether Morbid Obesity Is An Impairment

Jackson Lewis P.C. • January 13, 2019
We know that the ADAAA (Amendments Act of 2008) substantially altered the landscape for review of claims asserting a disability. But are employees still required to show some sort of disorder or impairment to state a claim? Is morbid obesity an impairment even if it is not tied to any underlying disorder? A case pending before the Seventh Circuit Court of Appeals is set to decide whether obesity is an impairment in and of itself under the ADAAA.

eLABORate: New Year, But Joint-Employer Standard Remains Unclear

Phelps Dunbar LLP • January 11, 2019
As we enter 2019, the NLRB’s employee-friendly standard for determining joint employer status under the National Labor Relations Act remains unclear. As we previously reported, the Board is currently engaged in rulemaking to set a joint employment standard through regulation, and this new standard is expected to limit joint employer status to only those situations where an entity exercises direct control over employees’ essential terms and conditions of employment. This has been an issue that has raised serious concerns in recent years among franchisors, contractors, and other employers who contract with outside entities. For example, would a national fast food franchisor be jointly liable for alleged employment law claims brought by the employees of a local franchisee? However, a recent appellate court decision signals that the Board’s rulemaking may only lead to further litigation.

DOL Sends Proposed Overtime Rule to the White House

Littler Mendelson, P.C. • January 11, 2019
The U.S. Department of Labor will send its draft of the long-awaited Notice of Proposed Rulemaking (NPRM) on the “white collar” overtime exemptions to the White House Office of Management and Budget (OMB) for review on or before Friday, January 11, 2019, as reported by Bloomberg Law and independently confirmed by Littler. OMB review is the final step before publication of the proposed rule in the Federal Register.

Indefinite Leave? A No-Go In The Federal Third Circuit!!

Brody and Associates, LLC • January 10, 2019
Indefinite leave is a thorn in the side of many employers. Oftentimes, employers have an employee out on leave who receives a doctor’s note that says the leave is indefinite. What is an employer to do? Sticking your head in the sand is certainly not recommended. The Third Circuit is one more Circuit to agree that indefinite leaves are not a reasonable accommodation.