Category Archives: Traditional Labor

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Important EEO-1 and I-9 Updates

Pay Data Requirement for EEO-1 Form Stayed Earlier this week, the U.S. Office of Management and Budget (OMB) initiated an immediate stay of the Equal Employment Opportunity Commission’s revamped Employer Information Report, or EEO-1. As discussed here, an expanded EEO-1 was issued in September 2016, and required employers to submit information on employee pay and hours … Continue Reading

Judge Not Persuaded, Permanently Enjoins DOL’s New Reporting Rule

In a major victory for the business community, Judge Sam R. Cummings of the U. S. District Court for the Northern District of Texas issued a permanent nationwide injunction blocking the Department of Labor (DOL) from enforcing its new “persuader” rule. National Federation of Independent Business, et al. v. Perez, et al., Case No. 5:16-cv-00066. … Continue Reading

EEOC and DOL Active Last Week: EEO-1 Pay Data Rule and Federal Contractor Paid Sick Leave Rule to Take Effect

Last week, the EEOC issued its final rule regarding pay data to be collected with the annual EEO-1 reports. Covered employers will now need to submit pay data sorted by job group and demographic data in their annual EEO-1 reports. The final rule was implemented with no material changes from the proposed rule first issued earlier this … Continue Reading

Is the Tide Turning Against Class Action Waivers in Arbitration Agreements?

Another federal court of appeals has weighed in on the question of whether requiring employees to waive the right to bring a class action against their employer in arbitration or court as a condition of employment violates employees’ rights under Section 7 of the National Labor Relations Act (NLRA).… Continue Reading

Temporary Employees—Or Long-Term Bargaining Obligation?

The current National Labor Relations Board (NLRB or Board) has done it again, once more overturning existing precedent. In a decision issued July 11, 2016, the Board abandoned its 2004 Oakwood Care Center decision (343 NLRB 659) which stood for the proposition that a unit comprising the employees of a “supplier” employer (such as a … Continue Reading

Business Groups Persuade Texas Judge to Issue Nationwide Injunction Against Enforcement of DOL “Persuader” Rule

Employers and their attorneys can breathe a collective sigh of relief, at least for the time being. On Monday, a Texas judge issued a nationwide injunction against the Department of Labor (DOL), preventing it from enforcing its new Persuader Rule after finding that the rule was “defective to its core.”… Continue Reading

7th Circuit Holds Mandatory Waiver of Class Claims Unlawful; Creates Circuit Court Split

In a decision that creates a split with the 5th Circuit Court of Appeals, the 7th Circuit on May 26, 2016 adopted the National Labor Relations Board’s D.R. Horton rationale and held that a condition of employment requiring employees to waive the right to bring class or collective actions either in arbitration or in judicial … Continue Reading

Closing the Loophole: Department of Labor Issues Final “Persuader” Rule

Thinking about running an anti-union campaign or consulting an attorney about your company’s non-union preferences? You may want to get started now, because the game is changing. In a move widely-believed by the business community to be political payback to labor unions, the Department of Labor (DOL) on Wednesday published a new final rule that … Continue Reading

It’s Unanimous: Employers Face an Uncertain Future After Justice Scalia’s Death

There’s no dissent here.  Justice Scalia’s unexpected passing presents a potential blow to employers in two ways.  First, the Supreme Court lost one of its most staunchly conservative justices, who often sided with management in key employment-related decisions.  Second, his death has left the Supreme Court without a clear majority and no easy mechanism to … Continue Reading

More Money, More Problems: Class Action Waivers in Mandatory Arbitration Hit Roadblocks from the NLRB

Part 2 of a 3-Part Series When considering the potential bill of sale on arbitration, employers that once considered arbitration may sing a different tune. In Part 1 of our 3-part series on mandatory arbitration, we pointed out that, contrary to legal lore, arbitration often proves just as inefficient as litigation against a principle-driven plaintiff … Continue Reading

Franchisor and Franchisee: Two Peas In A Pod (But What Will The NLRB’s Ruling Really Produce?)

The National Labor Relations Board’s (NLRB) long-anticipated decision in Browning-Ferris Industries, 362 NLRB No.186, will dramatically impact business for companies ranging from leased employee staffing arrangements to franchisor-franchisee models. The August 27, 2015 decision just turned 30 years of established precedent on its head. Since the mid-1980’s, the NLRB has followed a standard finding an entity … Continue Reading

Employment Law Highlights from the Supreme Court’s Current Term

Employment law loomed large on the Supreme Court’s docket this term. In seven highly anticipated cases, the Court interpreted federal employment statutes from Title VII and the Pregnancy Discrimination Act to FLSA and ERISA. While employers received favorable rulings in some cases, the Court’s decisions regarding religious discrimination and the accommodation of pregnant workers could impact … Continue Reading

NLRB Rulings Impact Confidentiality of Employer Investigations

On June 26, 2015, the National Labor Relations (NLRB) Board issued two decisions which significantly impact the confidentiality of employer investigations into employee misconduct. In the first case, Banner Health Systems, 362 NLRB No. 137, a 2-1 Board majority reaffirmed an  earlier decision which had been vacated by the D.C. Circuit Court of Appeals since … Continue Reading

Effects of NLRB’s Adoption of “Quickie Election” Rules

Amendments to the National Labor Relations Board’s (NLRB) election rules went into effect on April 14, 2015.  The new rules have already had a major impact on the timing of and procedures for union elections. The history leading up to the adoption of these amendments was discussed in Schiff Hardin’s February 7, 2014 and December 15, 2014 Labor … Continue Reading

NLRB’s Reversal of Register Guard Will Have Significant Impact on Employers’ Email Policies

Yesterday, the National Labor Relations Board, by a 3-2 majority, reversed its 2007 decision in Register Guard, 351 NLRB 1110, which had held that employees had no statutory right to use their employer’s email systems for communications protected by Section 7 of the National Labor Relations Act. Purple Communications, Inc. and Communications Workers of America, … Continue Reading

Another Employer Confidentiality Policy Held Unlawful by the NLRB

Continuing a recent trend, the National Labor Relations Board (NLRB) has found another employer’s confidentiality/information security policy to be in violation of the National Labor Relations Act (NLRA), based on its determination that the policy could have had a chilling effect on the exercise of employees’ Section 7 rights to discuss the terms and conditions … Continue Reading

NLRB General Counsel Authorizes Complaints Asserting Franchisor Can Be Jointly Liable With Its Franchisees

Earlier this week, the General Counsel of the National Labor Relations Board (NLRB), Richard F. Griffin, authorized the issuance of multiple complaints which include allegations that a franchisor, McDonald’s, USA, LLC, could be liable as a joint employer with its franchisees for violations of the National Labor Relations Act (NLRA). The text of the General … Continue Reading

Supreme Court Blocks Union Dues Requirement for Illinois In-Home Health Care Providers

On June 30, 2014, the Supreme Court ruled unenforceable an Illinois “fair share” law that requires in-home health care service providers to pay union fees. Harris v. Quinn, 573 U.S. ____ (2014). The Court described the petitioners as “partial public employees,” and therefore, compelling them to pay fees to a union that they did not … Continue Reading

Supreme Court Affirms Noel Canning Decision, Invalidates President Obama’s January 2012 Recess Appointments to the NLRB

Yesterday, the U.S. Supreme Court affirmed the D.C. Circuit Court of Appeals’ Noel Canning decision, which found that President Obama’s recess appointments in January 2012 of Sharon Block, Richard Griffin and Terence Flynn to fill vacancies at the National Labor Relations Board were invalid under the Recess Appointments Clause of the U.S. Constitution. (Art.II, Sec.2, … Continue Reading

NLRB Seeks Input on Whether to Broaden its Joint-Employer Standard

On May 12, 2014, the National Labor Relations Board (NLRB) invited interested amici to file briefs addressing joint-employment issues raised in Browning-Ferris Industries of California, Inc., et al., v. Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, Case No. 32-RC-109684. In that case, the NLRB is considering whether Browning-Ferris Industries (BFI) or … Continue Reading

NLRB Continues Scrutiny of Workplace Policies, Seeks to Revisit Employer Email Restrictions

The National Labor Relations Board (NLRB) continues to scrutinize workplace policies to assess whether such policies are overbroad and chilling to employees’ Section 7 rights. At issue in these cases is whether such policies could be reasonably interpreted by employees to prohibit their right to “engage in concerted activities for their mutual aid or protection” … Continue Reading

Fifth Circuit Holds Non-Union Employer Confidentiality Policy Violates the NLRA

Regardless of whether your workforce is non-union or union, your workplace policies and rules may be in violation of the National Labor Relations Act (NLRA). If employees could reasonably construe a policy as restricting their right “to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities … Continue Reading

Supreme Court Decides Donning and Doffing Question for Unionized Employers

The U.S. Supreme Court’s January 27, 2014 decision in Sandifer v. United States Steel Corp. brings clarity to a hotly contested area of law for unionized workplaces. Under the Fair Labor Standards Act (“FLSA”), employees are generally entitled to compensation for the time it takes them to don and doff-put on and take off-required protective … Continue Reading