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.
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NLRB Reverses Four Obama-Era Decisions
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.
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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 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.)
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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. The rule attempted to expand disclosure requirements by employers and their consultants (including attorneys) related to union-organizing campaigns.
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Employment Tricks For Halloween
Employers, along with tricks and treats, the holiday could bring risk of religious discrimination and harassment lawsuits. Employers should review discrimination policies and dress codes and rid themselves of any skeletons lurking in the closet.
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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 year, despite significant response and feedback from industry and employer groups citing concerns. For more information on the rule, see You Pay Your Employees What??? Employers Might Have to Share Hours and Pay Data in Proposed EEO-1 Form. The new EEO-1 form can be found here.
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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).
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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 leasing or temporary agency) and those of a “user” employer was not an appropriate unit for collective bargaining purposes, absent the consent of both employers. Miller & Anderson, Inc. and Tradesman International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, 364 NLRB No. 39.
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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.”
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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 forums runs afoul of Section 7 of the National Labor Relations Act, and is unenforceable as illegal. Lewis v. Epic Systems Corporation, No.15-2997 (7th Cir. 2016).
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