The U.S. Court of Appeals for the D.C. Circuit recently rejected the National Labor Relations Board’s attempt to expand the remedies available under the National Labor Relations Act for unfair labor practices. Building on established precedent, the court in HTH Corporation v. National Labor Relations Board held that the Board lacked statutory authority to order an employer found to have committed unfair labor practices to pay the litigation expenses that either the General Counsel or the union incurred in the case.
Workplace Policy Institute Insider Report — June 2016
Littler’s Workplace Policy Institute Insider Report details key labor, employment, and benefits news and events at the federal, state, local, and global levels. The June edition of the Insider Report highlights recent federal agency rulemaking, including the Department of Labor’s final overtime exemption rule, the Equal Employment Opportunity Commission’s wellness regulations, and the Occupational Safety and Health Administration’s injury and illness online reporting requirements. The Report also examines legislative and litigation efforts to stop these and other federal agency initiatives, and discusses key developments at the state level. The Report contains the following sections:
New Restrictions on Physician Non-Competes in Connecticut
A new Connecticut law significantly restricts the use of physician non-compete agreements. Public Act No. 16-95 (the “Act”), signed into law by Governor Dannel Malloy on June 2, 2016, limits the allowable duration and geographical scope of any new, amended, or renewed physician non-compete agreement. The law also states that physician non-compete agreements are unenforceable if the employer terminates the physician’s employment or the contractual relationship without cause. The new restrictions are set to take effect on July 1, 2016, so employers with physician non-competes are left with little time to assess the Act’s impact on their operations and to plan for compliance.
Minneapolis Becomes the Only City in the Midwest to Mandate Paid Sick and Safe Leave
On May 31, 2016, Mayor Betsy Hodges signed the Minneapolis Sick and Safe Time Ordinance (the “Ordinance”), an expansive paid leave measure. Under this Ordinance, starting July 1, 2017, employers must allow employees to accrue up to 48 hours of sick and safe time each year. Employers with six or more employees must provide paid sick and safe time, while smaller employers must at least provide unpaid leave. The Ordinance applies to private employers of all sizes, including employers with only one employee, as long one employee works within Minneapolis city limits.
D.C. Circuit Puts Potential Limits on the NLRB’s “Presumptively Relevant” Policy
In IronTiger Logistics, Inc. v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the NLRB’s policy of requiring employers to timely respond to union requests for “presumptively relevant” information (i.e., information relating to bargaining unit employees), but required the Board to explain why specific requests were presumptively relevant. The court also directed the Board to consider an employer’s defenses to union requests for information, including whether the requests were made for improper purposes.
Connecticut Becomes the Third Jurisdiction in 2016 to “Ban the Box”
On June 1, 2016, Connecticut Governor Dannel Malloy signed a bill into law that prohibits most employers from requesting criminal history information on an initial employment application. Connecticut’s new “ban-the-box” law follows closely on the heels of similar legislation enacted in Vermont and continues the nationwide ban-the-box trend.1 Indeed, ban-the-box laws have recently been enacted in other jurisdictions, including Austin, Texas; Portland, Oregon; and New York City.2 Connecticut’s ban-the-box law goes into effect on January 1, 2017.
Dissecting the Department of Labor’s Final Fiduciary Rule
In early April, the Department of Labor (DOL) issued a final rule to re-define who is rendered a “fiduciary” of an employee benefit plan under the Employee Retirement Income Security Act (ERISA) by providing investment advice to a plan or its participants or beneficiaries. More than five years in the making, issuance of a final rule to address conflicts-of-interest in retirement advice has been a priority for the White House and DOL to advance its “middle-class economics” agenda in the face of criticism in Congress and by a number of stakeholders.
Supreme Court Clarifies the Time Period for Initiating Constructive Discharge Claims
On May 23, 2016, the United States Supreme Court issued its decision in Green v. Brennan, holding that the statute of limitations for a constructive discharge claim begins to run at the time the employee resigns. While the Court’s 7-1 decision was unsurprising and does not change the substantive law of constructive discharge, it provides employers and employees alike with the benefit of a clear rule for assessing the timeliness of charges alleging constructive discharge.
Seventh Circuit Finds Class Action Waivers in Arbitration Agreements are Illegal and Unenforceable Under the NLRA
On May 26, 2016, the U.S. Court of Appeals for the Seventh Circuit issued its decision in Lewis v. Epic-Systems Corp., finding that the company’s arbitration agreement, which prohibits employees from participating in “any class, collective or representative proceeding,” violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA).
Data Science Opportunities and Challenges in the Legal and Human Resources Space
Some have said that the legal profession is late to the data science party. Why? What are the primary challenges to using artificial intelligence and related methods in this space? What does the future hold for AI in the legal space?
Understanding New York’s New Paid Family Leave Law
New York Governor Andrew Cuomo executed sweeping legislation on April 4, 2016, that will gradually raise the minimum wage in New York to $15 an hour1 and provide a phased-in system of paid family leave benefits providing covered employees up to 12 weeks of paid family leave – currently the most comprehensive paid family leave program in the nation. This Insight discusses the leave provisions, benefits schedule, coverage and other essential details of the new paid family leave law,2 referred to as the New York Paid Family Leave Benefits Law (“PFLBL”).
Join EEOC Commissioner Chai Feldblum and me for a Webinar on the EEOC’s New Resource on Leave as an ADA Reasonable Accommodation
Earlier this month, the EEOC issued a technical assistance resource on leave as an ADA reasonable accommodation under the ADA. I am delighted that EEOC Commissioner Chai Feldblum will join me for a webinar to take a deep dive into the information provided in the EEOC’s resource and apply the technical assistance to a variety of real-life scenarios.
Supreme Court Holds a Party May be Entitled to Attorneys’ Fees Absent a Favorable Ruling on the Merits
On May 19, 2016, the U.S. Supreme Court issued its decision in CRST, Inc. v. EEOC, which addressed the definition of a “prevailing party” who may be awarded attorneys’ fees in Title VII cases. Although the Court ultimately remanded the case to the Eighth Circuit on other grounds, it unanimously held that a favorable ruling on the merits of a Title VII case is “not a necessary predicate to find that a defendant has prevailed.” A boon to employers, this decision enables defendants to recover attorneys’ fees and costs under Title VII for frivolous, unreasonable, or groundless claims when such claims are disposed of on any grounds, regardless of whether those grounds are merit-based or procedural.
U.S. Department of Labor Publishes Final Rule on FLSA Overtime Regulations
On May 18, 2016, the U.S. Department of Labor published its Final Rule updating the Fair Labor Standards Act (“FLSA”) overtime regulations regarding the executive, administrative and professional exemptions (the “FLSA White Collar Exemptions”). The Final Rule does not make any changes to the outside sales or computer professional exemptions.
NLRB General Counsel Seeks to Limit an Employer’s Ability to Withdraw Union Recognition
National Labor Relations Board (NLRB) General Counsel Richard Griffin wants the Board to declare it unlawful for employers to withdraw recognition from an incumbent union without an NLRB election. See GC Memorandums GC 16-01 (Mar. 22, 2016) and GC-1603 (May 9, 2016). This would be a major change from current Board law articulated in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), which permits employers to unilaterally withdraw recognition from an incumbent union based upon “objective evidence” that the union has lost majority support (i.e., typically a petition signed by a majority of bargaining unit employees indicating that they no longer wish to be represented by their union). The General Counsel’s proposed change will not become law unless it is adopted by a majority of the Board.