NLRB Issues Proposed Rulemaking on the Joint Employer Standard

The National Labor Relations Board has made good on its recent promise to move forward with rulemaking to re-establish the decades-old joint employer standard in place prior to the Board’s 2015 decision in Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris or BFI), petition for review docketed Browning-Ferris Indus. of Cal. v. NLRB, No.16-1028 (D.C. Cir. filed Jan. 20, 2016).  On Sept. 13, the Board announced that it is issuing a proposed rule (to be published in the Federal Register on September 14, 2018) to establish an updated standard for determining joint employer status under the National Labor Relations Act.  Under the proposed rule, “[a]n 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.”  Notably, the Board’s proposed rule clarifies that 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.”  No doubt relieved to see a return to the pre-BFI standard, employers will be further delighted to discover that under the proposed rule, the Board is “presently inclined to find, consistent with prior Board cases, that even a putative joint employer’s ‘direct and immediate’ control over employment terms may not give rise to a joint-employer relationship where that control is too limited in scope.”

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New York State Publishes Draft Model Sexual Harassment Materials

On Thursday, August 23, 2018, New York State released draft model sexual harassment materials in preparation for October 9, 2018 employer compliance with its new sexual harassment laws, discussed in detail in a previous blog article.

New Materials:

New York State published the following draft materials on August 23, 2018:

All model materials are currently in draft form, pending a comment period set to end on September 12, 2018. Therefore, all model materials are subject to change prior to the October 9, 2018 effective date. Members of the public, as well as employers and employees, are encouraged to provide comments on the new materials via this link. Continue Reading

Upcoming Deadlines For New York City Employers: New York City Commission on Human Rights Publishes Poster and Fact Sheet on Sexual Harassment

As previously reported in a prior article, in May 2018, New York City Mayor Bill de Blasio signed into law the Stop Sexual Harassment in NYC Act (the “Act”). The Act provides, among other things, starting September 6, 2018, all New York City employers must display the New York City Commission on Human Right’s (“NYCCHR”) new anti-sexual harassment poster in a conspicuous place in the workplace and provide the information to employees at the time of hire. On August 10, 2018, the NYCCHR published an English-language version of the required poster, which can be found here. While the Act also requires the poster to be displayed in Spanish, the NYCCHR has yet to issue a Spanish-language version of the poster.   Continue Reading

New Massachusetts Law Limits Non-Competes

On August 10, 2018, Massachusetts Governor Baker signed into law a bill regulating non-competes, limiting their enforceability and codifying express requirements they must meet. The law goes into effect on October 1, 2018, and Massachusetts now joins the likes of states such as Utah and Idaho who have also recently passed laws regulating employee non-compete agreements.

The new law, which applies to both employees and independent contractors, generally bans employment-related non-compete agreements in Massachusetts unless they meet certain statutory requirements. Specifically, the agreement must be in writing, signed by both the employer and employee, and state the employee has the right to consult counsel prior to signing. The employer must also provide notice of the agreement to the employee, the form and timing of which depends on when the employee is asked to sign the agreement: Continue Reading

Hands Off-Pants On Ordinance In Effect in Chicago; California May Be Next

Last October, we wrote about a Chicago ordinance requiring hotel employers to, among other things, equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices. The ordinance took effect July 1, 2018. Hotel employers in Chicago should ensure compliance with the mandates of the ordinance as penalties may reach $500 for each offense. Each day a violation continues is deemed a new offense. Continue Reading

National Labor Relations Board Signals That It May Leave Purple Communications Black and Blue

On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access to their employer’s e-mail system have a right to use that e-mail system during non-working time for union organizing and other activities protected under Section 7 of the National Labor Relations Act (“Act”). The decision in Purple Communications overruled the standard set out in the Board’s 2007 Register Guard decision, where the Board held that employers may lawfully impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity. Continue Reading

New NYC Law Requires Employers to Engage in “Cooperative Dialogue” for Workplace Accommodations

As of October 15, 2018, NYC employers with four or more employees will be required to engage in a “cooperative dialogue” with a person who may be entitled to a workplace accommodation. The “cooperative dialogue” resembles the “interactive process” that most employers are familiar with under the Americans with Disabilities Act, but the NYC law applies to more than disability-related accommodations and, importantly, requires employers to document the cooperative dialogue process. We have prepared this short Q&A to help employers understand their obligations under the new law. Continue Reading

California Supreme Court Issues Narrow Holding In De Minimis Case, Leaving Many Issues Unresolved

On July 26, 2018, the California Supreme Court issued its long awaited decision in Troester v. Starbucks Corporation (S234969) on whether California wage and hour law recognizes the de minimis doctrine established by the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680 (1946) for wage claims arising under federal law.  Under the federal de minimis rule, small amounts of otherwise compensable work time are not actionable when tracking and paying for it is impractical.  Anderson held: “When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.  Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act.  It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”  Id. at 692.  In deciding whether compensable work time is de minimis, federal courts consider “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” See e.g. Lindow v. U.S. 738 F.2d 1057, 1063 (9th Cir. 1984); Kellar v. Summit Seating Inc., 664 F.3d 169, 176 (7th Cir. 2011); Kosakow v. New Rochelle Radiology Assocs., P.C. 274 F.3d 706, 719 (2d Cir. 2001).  Ten minutes or less is generally considered de minimis under federal law.  See Lindow, 738 F.2d at 1062.  The issue before the California Supreme Court in Troester (certified from the Ninth Circuit) was whether California wage and hour law recognizes the same or a similar rule.  Even though de minimis worktime is (by definition) small and insignificant, whether or not a de minimus exception to the requirement to pay for all time worked applies has major implications because relatively small amounts of unpaid wages have the potential to trigger substantial penalties and liability for plaintiffs’ attorneys’ fees in California. Continue Reading

New York City Temporary Schedule Change Law Now in Effect

As of July 18, 2018, New York City law requires employers to grant employees up to two temporary schedule changes per calendar year for qualifying “personal events.” We have prepared this short Q&A summary to help employers understand the requirements of the new law. Continue Reading

National Labor Relations Board Seeks To Increase Participation in Alternative Dispute Resolution Program With New Pilot Program

On July 10, 2018, the National Labor Relations Board (“NLRB” or “Board”) announced the start of a new pilot program to increase participation in its Alternative Dispute Resolution (“ADR”) program. Established in 2005, the Board’s ADR program provides free mediation services to parties who wish to attempt to settle cases that are pending before the Board through the use of a mediator from the Federal Mediation and Conciliation Service or the ADR program director. It is the Board’s position that the ADR program provides parties with greater control over their cases and more “creative, flexible, and customized settlements,” and will save the parties time and money. A settlement is reached in approximately 60% of the cases that participate in the ADR program, and the Board has always approved the settlement reached between the parties. However, regardless of the purported benefits of the ADR program and its “proven track record,” the Board’s Office of the General Counsel stated in its October 15, 2015 Memorandum OM 16-02 that “many cases that are excellent candidates for the program are not brought to the program by counsel for respondent or the General Counsel.” Continue Reading

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