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DOL Revokes Obama-era "Persuader Rule"

XpertHR • July 20, 2018
The Department of Labor DOL) has rescinded a rule that would have greatly expanded the types of activity an employer must report under the Labor Management Reporting and Disclosure Act (LMRDA). The "Persuader Rule" is the latest Obama-era rule to be reversed by the Trump administration.

Is the Gig Economy More Myth Than Reality?

XpertHR • July 20, 2018
The “gig economy” has been called a game changer for the relationship between companies and their employees. The rise of Uber, Lyft, GrubHub and others has drawn a good deal of attention to alternative work arrangements.

Weingarten Rights Not Violated; Employee Lawfully Terminated for Refusal to Take Drug/Alcohol Test

Jackson Lewis P.C. • July 20, 2018
An employee’s Weingarten rights have limits, especially as to drug and alcohol testing, where time is often of the essence, an NLRB Administrative Law Judge has held. Fred Meyer Stores, Inc., No. 19-CA-206136 (July 2, 2018).

Review of Supreme Court Nominee Kavanaugh's Labor and Employment Rulings Highlights "Common Sense" Textualist Approach

Goldberg Segalla LLP • July 20, 2018
On July 9, 2018, President Donald Trump announced his selection of Judge Brett Kavanaugh to fill the vacancy of retiring Justice Anthony Kennedy. Judge Kavanaugh will still need to be confirmed by the Senate in what has become an increasingly political process. Since 2006, Judge Kavanaugh has served as a United States Circuit Judge for the U.S. Court of Appeals for the District of Columbia Circuit. As a result, there is a large body of opinions, concurrences, and dissents that he has authored that provide insight into how Judge Kavanaugh may rule if confirmed.

A New Sheriff Takes Over at DOL’s Office of Labor-Management Standards

Ogletree Deakins • July 20, 2018
A little-known but crucial position at the U.S. Department of Labor (DOL)—the director of the Office of Labor-Management Standards (OLMS)—was finally filled on July 9, 2018, by Arthur F. Rosenfeld, an experienced former member of the administration of President George W. Bush. The intention to appoint Rosenfeld was first announced over nine months ago.

Caregiver Registries Find Key Information on Employment Relationship Determinations in WHD Field Assistance Bulletin

Ogletree Deakins • July 20, 2018
On July 13, 2018, the acting administrator for the United States Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2018-4 to assist field staff in determining when home care, nurse, or caregiver registries will be considered employers under the Fair Labor Standards Act.

Beltway Buzz, July 20, 2018

Ogletree Deakins • July 20, 2018
See Ya Later, Persuader. It took more than eight years, but the U.S. Department of Labor’s (DOL) persuader rule has finally been rescinded. Proposed just one day prior to the National Labor Relations Board’s (NLRB) 2011 ambush elections proposal, the persuader rule would have required employers and their attorneys or consultants to publicly disclose agreements they entered into regarding labor relations matters. Of course, the rule—which was finalized in April 2016—never went into effect as it was permanently enjoined in November 2016. The DOL offered several reasons for rescinding the 2016 interpretation including the fact that it impermissibly required reporting of activity that plainly constitutes “advice,” which is explicitly protected from reporting under the Labor-Management Reporting and Disclosure Act. This being Washington, D.C., however, the persuader reporting concept will never truly be dead, as it lives on in proposed legislation that the Buzz has recently discussed: the Workplace Democracy Act and the Workers’ Freedom to Negotiate Act. But that’s another story . . .

Fighting FMLA Abuse in the Summertime: Top 10 Employer Tools to Keep Employees Honest

Franczek Radelet P.C • July 20, 2018
It’s 82° and sunny today in Chicago. I’ve got my feet up and I’m feeling the warmth of the summer sun on my face. We live for these days here, since in the blink of an eye, it will be December, 20° and snowing.

Employee Benefits Newsletter – Summer 2018

Jackson Lewis P.C. • July 20, 2018
New Agency Guidance Makes Mental Health Parity and Addiction Equity Act Enforcement a Priority. A review of the parity compliance issues for plans and insurers providing mental health and substance use disorder benefits.

Top Five Labor Law Developments for June 2018

Jackson Lewis P.C. • July 20, 2018
Public sector employees who are non-members of a union cannot be legally required to pay agency or “fair share” fees as a condition of employment, the U.S. Supreme Court has held in a 5-4 ruling. Janus v. AFSCME Council 31, No. 16-1466 (June 27, 2018).

#MeToo at 30,000 Feet: The Unique Challenges the Anti-Harassment Movement Poses for the Airline Industry

FordHarrison LLP • July 20, 2018
Executive Summary: The #MeToo movement has now touched nearly every U.S. workplace, and the airline industry is no exception. The impact of the anti-harassment movement on airlines, however, is unique because of the independent nature of much of its workforce and the highly regulated nature of the industry. Further, the work environment extends to the skies, and work time can include time spent off-duty on layovers.

Class Action Waivers Are Lawful, Says United States Supreme Court

Brody and Associates, LLC • July 20, 2018
The United States Supreme Court has spoken – class and collective action waivers are lawful. The Court’s May 21 decision overturns the National Labor Relations Board’s (NLRB) position that these waivers violate employee rights and resolves a split among federal appellate courts. Employers should run, not walk, and include such provisions in their respective employment agreements!

States And Cities Are Taking Pay Equity Laws Into Their Own Hands. Will Your State Be Next?

Brody and Associates, LLC • July 20, 2018
Under the Obama Administration, employers saw the passage of the Lilly Ledbetter Fair Pay Act legislation meant to protect against pay discrimination based on gender. The Trump Administration, however, has not yet made equal pay a focus of its Administration. Who knows if it ever will? In the meantime, what will the states do?

Navigating the Legalization of Marijuana in Massachusetts: What Employers Need to Know

Ogletree Deakins • July 20, 2018
Massachusetts voters legalized recreational marijuana through a ballot referendum in 2016. As of July 1, 2018, retail marijuana stores are now permitted to operate in the state. The law allows cities and towns to exercise local control to ban or limit marijuana dispensaries, which are now opening in various locations around the state.

State Court Concludes ABC Test Should Be Applied Retroactively

Fisher Phillips • July 20, 2018
You remember the game-changing, earth-shattering, monumental decision from the California Supreme Court a few months ago that fundamentally changes the test to determine whether your workers are independent contractors or employees, don’t you? For those who had put it out of their minds hoping it was all just a nightmare, here’s the quick summary: rather than applying a balancing test that took into a number of factors, the California Supreme Court said that hiring entities need to prove that all of their workers satisfy the “ABC test” in order to properly classify them as employees. The test appears notoriously difficult to overcome, especially because Prong B of the test requires you to prove that the worker is performing work outside the usual course of your business. We’ve written about this test extensively; you can read more about it here.

New South Carolina Poster Requirement

FordHarrison LLP • July 20, 2018
As discussed in our June 2018 Alert, earlier this year the South Carolina Legislature passed the Pregnancy Accommodations Act, which expands existing state law protections for pregnant employees and, notably, requires employers to provide reasonable accommodations for “medical needs arising from pregnancy, childbirth, or related medical conditions.” Pursuant to this new law, the South Carolina Human Affairs Commission has issued a new poster, which must be posted by all employers in South Carolina with 15 or more employees. The poster is available in English and Spanish.

No Meal Break Violation Where Employees Are Incentivized to Stay Onsite Through Offer of Discounted Meal

Carothers DiSante & Freudenberger LLP • July 20, 2018
Today, the Ninth Circuit issued its opinion in Rodriguez v. Taco Bell Corp., upholding the district court’s grant of summary judgment in favor of Taco Bell on class claims for alleged meal break violations. In this case, Taco Bell authorized and permitted employees to take meal breaks during which they were relieved of duty and free to leave the premises. However, Taco Bell offered employees the option of purchasing a discounted meal at Taco Bell, in which case they had to remain on site to eat it (in order to prevent theft/abuse associated with employees bringing discounted food to third parties outside the restaurant). Because no good deed ever goes unpunished in California, a class action lawsuit was filed against Taco Bell alleging that their practices violated California law by denying employees lawful meal breaks.
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