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 FormThe new EEO-1 form can be found here.
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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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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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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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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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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 closes perceived loopholes in Section 203 of the Labor Management Reporting and Disclosure Act (LMRDA) and greatly expands reporting requirements for employers and labor consultants alike. Under the old rule, reporting of persuader activity by a labor relations consultant (including attorneys) was not required unless the consultant had direct contact with employees. Under the new rule, which goes into effect July 1, 2016, disclosure of even indirect contact with employees will be required.
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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 reverse appellate court decisions favoring employees.  With the 2016 elections nearly eight months away, and the likelihood of a replacement shrinking with each news cycle, 4-4 decisions are probably the new norm until a replacement is confirmed after the election.
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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 in court without the promised cost and time savings. In addition, the defense bar did not anticipate the cost of defending a class action waiver (seen as a key benefit to mandatory arbitration) before the NLRB.
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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 to be a joint employer of another entity’s employees only if it had significant control over the employment terms of those employees, such as the right to hire, fire, discipline, supervise or direct the day-to-day methods by which employees completed their job duties.
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