The National Labor Relations Board’s new “quickie” election rule—set to take effect on April 14, 2015—will detrimentally impact both employers and employees, according to many witnesses testifying at a Senate Committee on Health, Education, Labor and Pensions (HELP) hearing. Lawmakers and panelists described the rule’s many amendments to the Board’s representation election procedures, and debated the rule’s practical implications for all parties involved.
Michigan Court of Appeals Rules Medical Marijuana Users Discharged for Positive Drug Tests May Still Be Eligible for Unemployment Benefits
In a published decision that may surprise employers, the Michigan Court of Appeals ruled that an employee terminated for testing positive for marijuana but who possesses a medical marijuana card1 is not disqualified from receiving unemployment benefits so long as the employee’s use of marijuana is in accordance with the Michigan Medical Marihuana Act (“MMMA”), MCL 333.26421, et seq. In Braska v. Challenge Manufacturing Co., No. 313932,2 the court held that when an employee is terminated as a result of a positive drug test caused by the legal use of medical marijuana, the denial of unemployment benefits constitutes a “penalty” in violation of the MMMA’s immunity clause. The court avoided the issue of whether the MMMA governs the conduct of private employers by finding that a decision made by the Michigan Compensation Appellate Commission (“MCAC”) involves only state action.3 In the absence of guidance from any Michigan appellate court, employers may continue to rely on the U.S. Court of Appeals for the Sixth Circuit’s decision in Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012), which concluded that the MMMA does not regulate the conduct of private employers.
Relying on Duran, California Court of Appeal Upholds Denial Of Certification In Alleged Misclassification Action
The recent California Court of Appeal decision in Mies v. Sephora U.S.A., Inc., Case No. A139410 (1st App. Dist., Feb. 2, 2015) (unpublished) joins a growing number of cases finding the existence of uniform corporate policies, standing alone, is insufficient for class certification. Mies upheld the trial court’s decision denying certification in a misclassification case alleging retail store “Specialists” were misclassified as exempt.
California Employers Need Not Relieve Employees of all Duties During Rest Breaks, According to Court of Appeal
On January 29, 2015, the California Court of Appeal, Second District, published a landmark decision in Augustus v. ABM Security Services. Specifically, the Augustus court held that while California law prohibits employers from requiring employees to work during rest breaks, it does not require employees to relieve employees of all duty during rest breaks.
What to Expect When Your Male Employee Is Expecting: Massachusetts Replaces Maternity Leave Act with Parental Leave Act
Effective April 7, 2015, the Massachusetts Maternity Leave Act will be replaced by the Parental Leave Act (“PLA”). The new law expands the scope of the Maternity Leave Act by extending parental leave rights to men.
EEOC Releases Enforcement and Charge Statistics for FY 2014
The number of discrimination charges filed with the Equal Employment Opportunity Commission that included allegations of retaliation reached an all-time high in FY 2014, according to newly released enforcement and litigation statistics. Of the 88,778 charges filed with the EEOC from October 1, 2013 through September 30, 2014, 42.8% included retaliation claims.
Critical Filing Dates for FY 2016 H-1B Cap
Employers who wish to sponsor H-1B workers for Fiscal Year 2016 can begin filing petitions on April 1, 2015 for a start date of October 1, 2015. The H-1B visa is used by businesses who wish to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise. For FY 2016, cases will be considered accepted on the date that U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date it was postmarked.
New Efforts to Defeat the NLRB’s Expedited Election Rule Expected
As the April 14, 2015 effective date for the National Labor Relations Board’s so-called “quickie election” rule approaches, lawmakers opposed to this rule are expected to take every action within their power to stop its implementation. One option—filing a resolution of disapproval under the Congressional Review Act (CRA)—is expected to happen as early as next week.
Senate Hearing Focuses on Definition of Joint Employment
The implications of an expanded definition of “joint employer” under the National Labor Relations Act was the topic of debate among Senators and panelists during a Thursday hearing held by the Committee on Health, Education, Labor and Pensions. According to Chairman Lamar Alexander (R-TN), if the National Labor Relations Board decides to adopt the NLRB General Counsel’s position on joint employment in the pending Browning-Ferris case, this move “would destroy business opportunities for about 700,000 franchisees and employers.”
California Supreme Court Clarifies When An Arbitration Award May Be Corrected
On January 29, 2015, the California Supreme Court issued a decision clarifying the circumstances under which an arbitrator’s award may be corrected. In Richey v. Autonation, Inc., No. BC408319 (Cal. Jan. 29, 2015), the court examined an arbitrator’s award and concluded that, although the arbitrator may have committed error in applying the defendants’ proffered “honest belief” defense (a defense not provisioned under California law) the plaintiff was nevertheless afforded his statutory rights. The court explained that, because the arbitrator determined the plaintiff’s employment was terminated for violating his employer’s policy prohibiting outside employment while on medical leave, the plaintiff was not prejudiced by the arbitrator’s arguably misplaced application of the honest belief defense.
House Votes to Repeal the Affordable Care Act
In a message vote, the Republican-led House of Representatives elected to repeal the Affordable Care Act in its entirety. The move is considered symbolic, as the Senate lacks the 60 votes needed to avoid an almost certain filibuster, and the President has vowed to veto any repeal measure. The final vote on H.R. 596 was 239 to 186 along party lines.
Budget Proposal Seeks Funds for Paid Leave Programs, Whistleblower Protection, Wage & Hour Enforcement
As promised during last month’s State of the Union Address, President Obama’s budget proposal for Fiscal Year 2016 allocates funding to a number of initiatives designed to promote “middle class economics.” The Department of Labor alone would receive $13.2 billion in discretionary funding, part of which would go to enhancing wage and hour law enforcement, protecting whistleblowers, and assisting states with establishing paid leave programs. While the budget proposal is more opening salvo than law, it indicates where the Administration’s priorities lie. The following are some of the highlights from this year’s proposal.
DC Bill Would Bar Pre-Employment Marijuana Testing
The District of Columbia is considering legislation that would bar employers from conducting pre-employment marijuana testing, except as required by law. The bill—Prohibition of Pre-Employment Marijuana Testing Act of 2015—is scheduled to be discussed at a public hearing on Monday, February 9, 2015.
Northern District of Illinois Grants Employer Summary Judgment in “Dual Jobs” Tip Credit Case
On December 17, 2014, Judge Charles Norgle of the Northern District of Illinois granted summary judgment to an employer on all counts in a tip credit case where servers argued they were engaged in activities outside of their server duties. In Schaefer v. Walker Bros. Enterprises, Inc., 10 CV 6366, plaintiffs alleged that their employer violated the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL) by: (1) incorrectly using a tip credit to pay plaintiffs an hourly rate less than minimum wage while requiring plaintiffs to perform duties outside of their tipped occupation; and (2) failing to properly inform plaintiffs of their intent to apply the tip credit to plaintiffs’ wages.
Want to Drastically Improve Your FMLA and ADA Expertise? My Recommendations on the Top FMLA/ADA Conferences to Attend
Throughout the year, HR professionals and attorneys ask me for my recommendations on the very best conferences to learn more about the FMLA and ADA. The “best,” of course, is in the eye of the beholder. In my humble opinion, however, the conferences highlighted below are can’t miss seminars if you want to expand your knowledge of the FMLA and ADA or if you spend much of your professional lives in these areas: