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.
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
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
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>
In a recent speech, the head of the Antitrust Division of the U.S. Department of Justice (DOJ) once again warned companies about the antitrust risks of certain agreements among employers not to hire each other’s employees. The Federal Trade Commission and DOJ Antitrust Division have challenged these agreements for years. To avoid the new criminal risks that can come with some of these so-called “no-poach” agreements, companies should review any agreements with others regarding hiring practices and ensure their antitrust training is properly designed and targeted. Continue Reading DOJ Antitrust Division Again Emphasizes Risks of “No-Poach” Agreements
Board Member Philip Miscimarra’s term on the National Labor Relations Board (NLRB) expired last week with a bang rather than a whimper. In the final days of his tenure, the Board reversed four controversial Obama-era decisions addressing joint employers, workplace policies, micro-units, and the duty to bargain. These decisions, summarized below, will impact all employers, not just those with unionized workforces. Although the Board now returns to a 2-2 Republican to Democrat split as a result of Miscimarra’s departure, once his Republican replacement is confirmed employers should expect to see more decisions on the chopping block. Continue Reading NLRB Reverses Four Obama-Era Decisions
As we previously blogged here, beginning on October 31, New York City businesses will no longer be allowed to ask about an applicant’s salary history during the hiring process.
Just in time for the law to go into effect, the NYC Commission on Human Rights has published a set of FAQs to help employers and the public navigate through the hiring process under this new law. Below are some key takeaways from the FAQs. According to the Commission’s guidance, this is how the law is expected to be applied.
Technological advances are leading many businesses to collect and store the biometric data of their employees, contractors, and customers for purposes of identification and authentication. Biometric data has many uses, such as giving people access to their accounts and sensitive financial information, providing employees, contractors, and customers physical access to workplaces and businesses, and giving employees the ability to clock in and out of work without using keyfobs or ID cards. Continue Reading Illinois Businesses Beware: Class Action Suits on the Rise for Alleged Violations of the Illinois Biometric Information Privacy Act
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 by job category, in addition to demographic information. The new EEO-1 requirement was to take effect beginning with the next EEO-1 date of March 31, 2018 (changed from previous September 30 submission deadlines.) Continue Reading Important EEO-1 and I-9 Updates
On July 1, 2017, Chicago’s Paid Sick Leave Ordinance and Cook County’s Earned Sick Leave Ordinance go into effect, requiring employers to provide paid sick leave to covered employees. (A detailed description of each ordinance’s requirements may be found on our blog here and here.) In addition to providing paid sick leave, employers must provide notice to employees of their rights under the law. Continue Reading Reminder for Cook County and Chicago Employers: New Sick Leave Laws Become Effective July 1