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Rather than wait for another case to come before it to address the requirements for joint employer status, the majority of the National Labor Relations Board (NLRB) members have opted to take the little-used rulemaking route. The proposed rule, which was released on September 14, 2018, would amend 29 CFR part 103 to add §103.40, defining joint employers. The proposed definition is only two sentences long:

An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.

Continue Reading NLRB Tries Again on Joint Employer Question

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As of August 21, 2018, the Nursing Mothers in the Workplace Act, 820 ILCS 260, has been amended to provide that Illinois employers that are subject to the Act must provide reasonable break time whenever the employee needs to express milk. The break time may (but not “must”) run concurrently with break time already provided. Continue Reading Expanded Protection for Nursing Mothers in Illinois

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The Office of Federal Contract Compliance Programs (OFCCP) released three new directives late last week, which provide insight into its approach with respect to two key facets of contractor compliance under new Acting Director Craig Leen: compensation analysis and affirmative action programs (AAPs). “Directives” do not create or change laws, but provide guidance on the agency’s enforcement and compliance policies.

Federal contractors or subcontractors subject to affirmative action requirements under Executive Order 11246, Section 503 of the Rehabilitation Act, or the Vietnam Era Veterans’ Readjustment Assistance Act should pay attention to these developments. Continue Reading OFCCP Issues New Directives to Boost Contractor Compliance

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California has broken with federal precedent once again in favor of its state employees, rejecting application of the Fair Labor Standard Act’s de minimis rule in a lawsuit seeking recovery of unpaid wages under California state law. Under the de minimis doctrine, employers are excused, in some circumstances, from paying employees under the federal Fair Labor Standards Act (FLSA) for small amounts of otherwise compensable time worked when that time is administratively difficult to track. The California Supreme Court held last week in Troester v. Starbucks Corporation, that the de minimis doctrine does not apply to claims for unpaid wages under California state law where an employer requires its employees to work small amounts of time off the clock on a regular basis or as a regular feature of the job. Continue Reading California Supreme Court Rejects FLSA’s De Minimis Doctrine

Earlier this month, the General Counsel of the National Labor Relations Board issued a memo instructing regional agency officials on how to assess workplace rules in light of the new standard established by the National Labor Relations Board (NLRB) in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). Together, the Boeing decision and the General Counsel’s memo shift the presumption regarding facially neutral workplace rules back in favor of the employer.

Continue Reading NLRB General Counsel Issues New Guidance for Workplace Rules

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It was a good start to the week for employers. That is because on Monday the U.S. Supreme Court issued its long-awaited decision in Lewis v. Epic Systems, and two other related cases, and held that class action waivers in employment agreements with arbitration clauses must be enforced as written. In reaching this conclusion the Court flatly rejected the National Labor Relations Board’s position that class action waivers are invalid because they violate an employee’s right to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA).

After six years of uncertainty, those employers with appropriate class action waivers in their employment agreements can breathe a collective sigh of relief. For all other employers, it may be time to reconsider whether an employment agreement that includes a class action waiver can reduce your liability exposure. Continue Reading Supreme Court OKs Class Action Waivers in Employment Arbitration Agreements

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The California Supreme Court adopted a new test Monday for determining whether workers are employees—rejecting the court’s previous multi-factor test. The decision in Dynamex Operations West Inc. v. The Superior Court of Los Angeles County, S222732 (Cal. Apr. 30, 2018), has immediate ramifications for employers in California who hire or utilize independent contractors. In short, the bar for establishing “independent contractor” status has been raised, and California companies will have to assess their practices in order to conform to this new reality. Continue Reading California Supreme Court Raises Bar on Independent Contractor Status

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The Ninth Circuit U.S. Court of Appeals held Monday, on the eve of National Equal Pay Day, that it violates the Equal Pay Act to use pay history to justify wage gaps between male and female employees for the same or substantially similar work. The decision in Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018) has immediate ramifications for employers in the Ninth Circuit in evaluating employee compensation. Continue Reading Consideration of Pay History to Justify Gender Wage Gaps Held Unlawful by Ninth Circuit on Eve of National Equal Pay Day

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On February 21, the U.S. Supreme Court issued an opinion in Digital Realty Trust, Inc. v. Somers, S. Ct. No. 16-1276 (Feb. 21, 2018), narrowing the scope of who qualifies for whistleblower protection under the Dodd-Frank Act. Dodd-Frank is a federal law which, in conjunction with the Sarbanes-Oxley Act, provides incentives and protections for whistleblowers who report suspected securities law violations to the Securities and Exchange Commission (SEC). The issue before the Court was whether “the anti-retaliation provision of Dodd-Frank extend[s] to an individual who has not reported a violation of the securities laws to the SEC and therefore falls outside the Act’s definition of ‘whistleblower[.]’” The Court held that the definition of “whistleblower” in Dodd-Frank did not include employees who failed to report suspected securities law violations to the SEC. While the Court’s decision was based on the statutory language of Dodd-Frank, the decision may present an argument for narrower interpretations of the protections afforded to employees under the whistleblower provisions of the anti-retaliation provisions of Title VII and the ADEA, and other laws such as the False Claims Act. Continue Reading High Court Narrows Whistleblower Status Protections Under Dodd-Frank

As we had previously reported, in 2015 the then-Democrat controlled National Labor Relations Board (NLRB) in the Browning-Ferris case ruled that a joint employer relationship could be found if an entity had mere indirect or potential control over individuals employed by another entity. This decision reversed decades of precedent in which the NLRB held that a joint employer relationship would only be found if one entity had “direct and immediate control” over individuals employed by another entity. Continue Reading Ping-Pong Anyone? NLRB Vacates <em>Hy-Brand</em> and Reinstates – For the Moment – <em>Browning-Ferris</em>