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eLABORate: In a Boost to the Gig-Economy, NLRB Says Uber Drivers are Not Employees

Phelps Dunbar LLP • May 22, 2019
The National Labor Relations Board (NLRB) has released an advisory opinion concluding that Uber drivers are independent contractors, restricting those drivers’ right to unionize, file labor complaints, or seek protections from the federal government.

Labor Board Announces Rulemaking Agenda: Should Employers Pay Attention?

Fisher Phillips • May 22, 2019
The National Labor Relations Board announced today in its spring 2019 regulatory agenda that it intends to consider rulemaking in the following substantive areas arising under the National Labor Relations Act:

5 FAQs on the Equality Act and Employment Nondiscrimination

Ogletree Deakins • May 22, 2019
Last week, the U.S. House of Representatives passed the Equality Act, a bill that would amend federal law (including Title VII of the Civil Rights Act of 1964) to prohibit discrimination on the basis of sexual orientation and gender identity.

What Am I Doing Wrong?? Common FMLA Mistakes (May 22, 2019)

Jackson Lewis P.C. • May 22, 2019
“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 23rd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

OSHA Requests Information on Potential Changes to Lockout/Tagout Standard Including Addressing Robotic Technology

Jackson Lewis P.C. • May 21, 2019
OSHA’s Lockout/Tagout Standard at 29 C.F.R. 1910.147 regulates the control of exposure to unexpected energization during service and maintenance on machines or equipment. On May 18, 2019, OSHA issued a Request for Information (RFI) seeking “information regarding two areas where modernizing the Lockout/Tagout standard might better promote worker safety without additional burdens to employers: control circuit type devices and robotics.”

Employers, Politics, and Free Speech

Jackson Lewis P.C. • May 21, 2019
With political campaigns well underway, the protection of “free speech” and concerns that regular political discourse could create potential liability are mounting.

Is a Rumor a Woman Slept Her Way to the Top Sex Discrimination?

Brody and Associates, LLC • May 20, 2019
The Fourth Circuit Court of Appeals recently ruled spreading rumors that a woman slept her way to the top is sex discrimination. The Fourth Circuit includes federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

NLRB General Counsel Seeks to Deflate Scabby the Rat

Franczek Radelet P.C • May 20, 2019
Scabby, the gnarly, diseased, inflatable rat, has long been recognized as a symbol of a labor protest. During the Obama-era, the National Labor Relations Board likened the use of Scabby to peaceful, protected activities such as hand-billing and found that the rat did not have an unlawful, coercive effect. Not surprisingly, that view seems to have changed now that the Board has shifted to Republican control. In a recent advisory memo issued by the Board’s Office of the General Counsel, Scabby was categorized as a coercive symbol that “create[s] a symbolic, confrontational barrier” and is the “functional equivalent” of unlawful picketing. As such, the General Counsel’s memo urges the Board to overturn Obama-era Board precedent and find that a union’s act of inflating Scabby may violate the National Labor Relations Act.

Labor Board General Counsel’s Review of Employer Work Rules a Mixed Bag

Jackson Lewis P.C. • May 20, 2019
The National Labor Relations Board’s (NLRB) General Counsel (GC) has issued an Advice Memorandum on whether unfair labor practice charges alleging four employer rules violated the National Labor Relations Act (NLRA) have merit. In a Memorandum released on March 14, 2019, the GC concluded that the employer’s dress-code, confidential-information, and media-relations rules were lawful, but its cell-phone rule was unlawful.

Trump Administration Announces Plan for Immigration Reform

Littler Mendelson, P.C. • May 20, 2019
In an announcement on Thursday, May 16, 2019, President Trump unveiled an outline of his new legislative plan to modernize the nation’s immigration framework, promising to “establish[] a new legal immigration system that protects American wages, promotes American values, and attracts the best and brightest from all around the world.”1 In introducing the plan, President Trump announced, “[w]e are proposing an immigration plan that puts the jobs, wages, and safety of American workers first.”2

Labor Department Faces Blowback After Gig Economy Opinion Letter

Fisher Phillips • May 20, 2019
According to Bloomberg Law’s weekly “Punching In” column (an absolute must-read each week) that published today, some congressional leaders are not too pleased with the Labor Department after it published an opinion letter a few weeks ago confirming that certain workers for an unnamed gig economy company were properly classified as independent contractors.

Changes to Employee Benefit Plans May Create Unforeseen Disclosure Deadlines

Jackson Lewis P.C. • May 20, 2019
Believe it or not, it may be time to distribute a new Summary Plan Description (SPD) to include all changes made since the last issuance or a Summary of Material Modifications (SMM) for any amendments adopted during the 2018 plan year.

6 FAQs on Measles in the Workplace: What Employers Need to Know

Ogletree Deakins • May 20, 2019
On May 17, 2019, the Centers for Disease Control and Prevention (CDC) reported that 880 individual cases of measles had been confirmed in 23 states across the country in 2019. According to the CDC, the current outbreak of measles represents the greatest number of cases reported in the United States since 1994 and since the disease was declared eliminated in 2000.

President Proposes New Merit-Based Green Card System

Ogletree Deakins • May 20, 2019
On May 16, 2019, President Donald Trump outlined, in broad strokes, his new immigration plan. The proposal delineates two primary goals: securing the U.S. border and protecting American workers. Most notably, the plan includes the introduction of a new “Build America” visa that would replace existing green card preference categories and limit family-based immigration in favor of a merit-based points system. President Trump says that his plan will significantly increase the number of green cards awarded to highly skilled workers.

The EPL Insurance Advisor – May 2019

Jackson Lewis P.C. • May 17, 2019
To assist underwriters and claims professionals in assessing emerging employment risks, we are pleased to provide the first issue of our newsletter. The EPL Insurance Advisor highlights topical issues in claims, defenses, and liability risk management developments.

A Numbers Game: Labor Board Rules on Successor Employer’s Bargaining Obligation

Jackson Lewis P.C. • May 17, 2019
The National Labor Relations Board (NLRB) has held that an operator of a unionized nursing home pursuant to a lease agreement with the former owner and operator was a successor employer under the National Labor Relations Act (NLRA), despite the fact that a majority of its bargaining unit employees did not come from the bargaining unit of the former operator. Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (Apr. 2, 2019).

NLRB Advice Memo Could Mean End For “Scabby The Rat”

Fisher Phillips • May 17, 2019
An advice memorandum just released by the National Labor Relations Board General Counsel’s office could be the beginning of the end for “Scabby the Rat,” “Corporate Fat Cat,” and similar oversized balloons often employed by unions to exert pressure on neutral employers as part of secondary picketing actions. The Board’s counsel recommended in a May 14 release that the NLRB reverse several Obama-era decisions that permitted the use of such balloons, as well as the erection of stationary banners, as lawful non-picketing secondary activity under the National Labor Relations Act (NLRA). If the current Board follows the recommendation contained in the advice memo, businesses will have a valuable tool to help them with such union confrontations.

NLRB Finds Uber Drivers Are Independent Contractors, Not Employees

XpertHR • May 17, 2019
The National Labor Relations Board (NLRB) has concluded that Uber drivers are independent contractors, not employees. In an April advice memo just released this week, the NLRB handed Uber a big victory and left its drivers without the right to organize under the National Labor Relations Act.

Labor Board Upholds Employers’ Right to Provide Truthful Information about Right to Work Laws

Jackson Lewis P.C. • May 17, 2019
The National Labor Relations Board (NLRB) has dismissed a complaint against a Wisconsin employer that published a document informing employees of their right to stop paying union dues under Wisconsin’s right to work law. Metalcraft of Mayville, 367 NLRB No. 116 (Apr. 17, 2019).

Trump Introduces Outlines of Immigration Reform in Advance of 2020 Campaign

Jackson Lewis P.C. • May 17, 2019
President Donald Trump has introduced the broad outlines of his proposal for immigration reform. The “merit and heart system” focuses on security and establishing a more fully merit-based system for permanent residence (“green card”) status.

Federal Court Allows Class Action Website Disability Access Case to Proceed Against An Employer

Jackson Lewis P.C. • May 17, 2019
While we continue to wait for guidance from the government on website accessibility standards, plaintiffs continue to challenge the accessibility of company websites. For years, individuals have brought lawsuits claiming that their access to goods and services is limited under Title III of the Americans with Disabilities (“ADA”). More recently we have seen individuals challenge their access to employment under Title I of the ADA due to online application processes that they claim are not accessible.

DHS Announces That It Will Issue 30,000 Additional H-2B Visas in Response to High Demand

Ogletree Deakins • May 17, 2019
After a tumultuous filing period for the second half of fiscal year (FY) 2019, employers that rely on H-2B seasonal workers received some good news. The U.S. Department of Homeland Security (DHS) has agreed to issue up to 30,000 additional H-2B visas for the second half of FY 2019, which runs through September 30, 2019.

Beltway Buzz, May 17, 2019

Ogletree Deakins • May 17, 2019
Top DOL Official to Depart. This week the U.S. Department of Labor (DOL) announced that Chief of Staff Nicholas Geale will resign his position effective May 31, 2019. Geale is a veteran of the D.C. labor policy debates, having previously served as a member of the National Mediation Board, as an official in the Elaine Chao DOL, and as a staff member of the U.S. Senate Health, Education, Labor and Pensions Committee. Accordingly, his departure will likely have a significant impact on the substance and pace of the DOL’s policy agenda. Indeed, Geale’s exit comes at a time when the agency is racing to finalize high-profile rulemakings and fend off legal challenges to other rules, all while facing increased scrutiny from House Democrats.

Hold the Phone: Employer Liable for FMLA Claim Even When Employee Was Not Eligible

Brody and Associates, LLC • May 16, 2019
Did you know an employer can be liable for an FMLA claim even when the employee is not actually eligible for FMLA? Below is how as a Wisconsin employer found this out, the hard way.

EPLI Trends, Sexual Harassment Claims, and Planning for 2019

Jackson Lewis P.C. • May 16, 2019
As workplace laws continue to evolve, the potential risk exposure is increasing. Jackson Lewis prepared this trends overview to help assess the current workplace law landscape in the #MeToo era and the wave of agency charges, latest claims, and new laws.

Top Five Labor Law Developments for April 2019

Jackson Lewis P.C. • May 16, 2019
May 15, 2019 National Labor Relations Board (NLRB) General Counsel Peter Robb urges the Board to return to its traditional joint-employer standard. In a brief filed with the U.S. Court of Appeals for the D.C. Circuit on April 17 and released on April 29, Robb stated his belief that the Court exceeded its authority in December 2018, when it directed the Board to fashion a joint-employer test consistent with common law joint-employment principles. Robb interpreted that direction as restricting the Board’s ability to reverse its employee-friendly Browning-Ferris Industries, 362 NLRB No. 186 (2015), joint-employer standard, a standard that Robb has criticized in the past. Under the test favored by Robb and followed by the Board prior to Browning-Ferris, joint-employer status would be found only where two entities actually share or codetermine employees’ essential terms and conditions of em

Will OSHA Pay Your Attorney’s Fees for Fighting an Improper Citation Under the Equal Access to Justice Act?

Fisher Phillips • May 16, 2019
The Occupational Safety and Health Administration (OSHA) conducted an inspection of your facility. OSHA issues a serious citation to your company for a machine guarding violation, despite the fact the OSHA investigator did not actually observe a plausible infraction. Your company would like to contest the citation because it was not justified. However, your company is not sure if it can afford to pay an attorney to fight the citation. There may be relief. The Equal Access to Justice Act may provide your company with an avenue for having the government foot the bill for your company challenging the citation.

EEO-1 Pay Data Deadline Reinstated

Nexsen Pruet • May 16, 2019
All private employers with a workforce of 100 or more who are subject to Title VII must now submit 2017 and 2018 pay data to the Equal Employment Opportunity Commission by September 30. The reinstatement results from a March 4 ruling by Washington, D.C., District Court Judge Tanya Chutkan in National Women’s Law Center v. Office of Management and Budget, Civ A. No. 17-cv-2458 (D.D.C.). Importantly, the “Component 2” pay data report is not limited to employers who are federal contractors. With the reinstatement of the revised EEO-1 report, subject employers now have two 2019 compliance deadlines: May 31 for the traditional EEO-1 report, including race/ethnicity and gender reporting in each of the 10 occupational categories, and September 30 for the wage and hour/pay data report. In addition to the information required by the traditional EEO-1 Report, the Component 2 report adds a reporting requirement of total annual hours worked for those same employees in each pay band and snapshot pay data within those 12 defined pay bands. The EEOC is prohibited by statute from publishing the employment data derived from the EEO-1 reports prior to the institution of any Title VII proceeding, other than as non-employer-specific aggregate data. As for the timing and logistics of the Component 2 report, the Commission released the following statement

OSHA Citation of Employer For Failing to Do More to Prevent Workplace Violence Upheld

Nexsen Pruet • May 16, 2019
In December 2012, a “service coordinator” (similar to a community service worker and home health worker) employed by Integra Health Management Inc. was fatally stabbed during a home visit to one of the company’s clients.

Third Thursdays with Ruthie: Policies and Protected Concerted Activity

Ogletree Deakins • May 16, 2019
Both union and non-union employers need to be sure that their policies and procedures do not violate Section 7 of the National Labor Relations Act. In this episode of the Third Thursdays podcast, Ruthie Goodboe and Sarah Kuehnel discuss what constitutes protected concerted activity, the recent narrowing of this definition, and practical takeaways for employer policies.

Salary History Bans: FAQs, Best Practices, and Latest Updates

Ogletree Deakins • May 16, 2019
Laws limiting employers’ inquiries on a prospective employee’s compensation history are on the rise. More and more states and localities are passing these laws and, at the same time, courts are deciding cases on whether prior salary can justify pay differences. In this episode, Lara de Leon discusses the current state of the law and key steps employers can consider to address bans on salary history.

Diversity and Inclusion in Manufacturing: Practical Tips for a Successful Program

Ogletree Deakins • May 16, 2019
In this episode, Bud Bobber and Kimya Johnson discuss practical ways that employers in the manufacturing industry can address diversity and inclusion (D&I) in the workplace. They will cover unique challenges faced by manufacturers, best practices for developing, implementing, and tracking D&I initiatives, and key tenets of successful programs.

Third Thursdays with Ruthie: Are College Professors and Other Professional Employees Covered By the NLRA?

Ogletree Deakins • May 16, 2019
The issue of whether faculty at private colleges and universities are entitled to the protections of the National Labor Relations Act is still in flux—and cases on this topic can provide useful insight for other industries as well. In this episode of the Third Thursdays podcast, Ruthie Goodboe and Fito Agraz discuss the current state of the law as it relates to managerial status under the NLRA, and what recent cases mean for employers inside and outside of the educational context.

Employment Law Legends, Episode 1 – Employment Law Reborn: West Coast Hotel v. Parrish

Ogletree Deakins • May 16, 2019
Our new series, Employment Law Legends, examines pivotal employment law cases—from the history behind them to their lasting impact. In the first episode of the series, Paul Rinnan discusses West Coast Hotel v. Parrish, a case that made it possible for the legislature and the courts to regulate the employer-employee relationship in ways never thought possible before.

FMLA Leave: When Can Employers Prorate Bonus Payments?

Ogletree Deakins • May 16, 2019
Employers frequently wonder when to pay bonuses to employees on leave under the Family and Medical Leave Act (FMLA). Do employees who do not meet certain goals due to leave qualify for such bonuses? The FMLA regulations provide:

Resumption of Social Security No-Match Letters Raises the Stakes for Employers

Ogletree Deakins • May 16, 2019
After a seven-year hiatus, the Social Security Administration (SSA) has resumed the practice of sending no-match letters (officially called Employer Correction Request notices).

No Taxation With Religious Invocation: Seventh Circuit’s Decision to Impact Ministerial Employees

Ogletree Deakins • May 16, 2019
In Gaylor v. Mnuchin, the Seventh Circuit Court of Appeals recently held that a tax code exemption for religious housing of ministers does not violate the Establishment Clause of the First Amendment of the U.S. Constitution. The decision has a direct impact on religious employers and their ministerial employees as well as a potential impact on secular employers that provide housing allowances for their employees.

Judge Orders Nationwide Preliminary Injunction Blocking Enforcement of Automatic Accrual of Unlawful Presence

Ogletree Deakins • May 16, 2019
The U.S. District Court for the Middle District of North Carolina has issued a nationwide preliminary injunction halting the enforcement of the Trump administration’s August 2018 policy memorandum that changed when “unlawful presence” accrues for foreign students and exchange visitors.

Scott Mugno Withdraws as OSHA Nominee

Ogletree Deakins • May 16, 2019
Scott A. Mugno, President Trump’s nominee to be Assistant Secretary of Labor for Occupational Safety and Health, withdrew his name from consideration in a letter submitted on May 14, 2019, to the White House and to Secretary of Labor Alexander Acosta.

Department of Labor: Workers in Virtual Marketplace Companies Are Independent Contractors

Goldberg Segalla LLP • May 16, 2019
Virtual marketplace companies such as Uber, Lyft, and Handy are receiving a boost in their quest to classify workers as independent contractors. The U.S. Department of Labor issued a new guidance opinion about whether a worker is an employee or an independent contractor. This guidance, issued April 29, 2019, is the first issued during the Trump era. It discusses the hot-button topic of employee versus independent contractor classification involving a virtual marketplace company.