Expect More Pro-Business Rulings From NLRB This Year

This article originally appeared on Law360 on January 27, 2020.

The current National Labor Relations Board was extremely kind to employers during 2019, issuing a multitude of precedent-setting decisions and new rules that reversed many of the excesses of the Obama board and returned the National Labor Relations Act to its more neutral legislative intent.

The board’s current composition will change this coming August when member Marvin Kaplan’s term expires. But with the Republicans in control of both the White House and the Senate, at least, through the end of the year, 2020 is shaping up to be another year of decisions and rules that give employers further hope that additional business-friendly decisions are on the way.

These anticipated cases and rule changes include but certainly are not limited to the following. Continue Reading

The Cost and Burden of Discovery for California Employers Will Likely Increase in 2020

A new change to California’s Civil Discovery Act has all of the trappings of a burdensome and costly requirement for employer defendants litigating in California state court. In addition to a litany of new California employment laws discussed in prior blog posts, Governor Gavin Newsom also signed into law SB 370, which became effective on January 1, 2020. SB 370 now requires the producing party in a civil litigation to identify the specific document request number to which documents are responsive. Although this new requirement will likely increase defense costs for many employers, as we discuss below, it can also be used to help streamline document demands while providing greater opportunities to incorporate technological solutions into the discovery process. Continue Reading

New Jersey Court Commands Cannabis Reimbursement in Workers’ Compensation Dispute

In a case of first impression, the New Jersey Appellate Division determined that employers in the state must reimburse employees for medical cannabis following a workplace accident, despite federal prohibitions against cannabis distribution.  The January 13, 2020 decision in Hager v. M&K Construction, Case No. A-0102-18T3, is the first time a court in the state has required reimbursement for a cannabis prescription in the workers’ compensation context, and may signal a fresh judicial focus on the scope of lawful medical cannabis use in the employment context both in New Jersey and in states with similar laws.

The Hager decision has clear implications for New Jersey employers, who are now required to reimburse injured employees for medical cannabis (at least under circumstances similar to those presented in the case).  Employers in other states that have legalized medical cannabis but have yet to rule on the interplay between the Controlled Substances Act (“CSA”) and state law in workers’ compensation disputes should also take note in the event that similar reimbursement requests arise.

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The Time Is Now for Employers in Illinois to Abide by New Laws

The New Year brings new laws for Illinois employers. Some laws go into effect this Summer, while others are effective as of this month. For employers who have not yet revised handbooks, policies and agreements, the time is now. Below is a brief summary of the new laws. Continue Reading

New York Targets Members of Out-of-State LLCs in New Wage Theft Bill

Effective February 10, 2020, the top ten members of an out-of-state limited liability company (“LLC”) can be held personally liable for violations of New York’s wage and hour laws. The bill, signed on December 12 by Governor Andrew Cuomo, amends New York’s LLC Law which previously only extended individual liability for unpaid wages to owners of domestic LLCs (text available here). Continue Reading

Department of Labor Issues Final Rule on Calculating the Regular Rate of Pay Under the Fair Labor Standards Act

On December 12, 2019, for the first time in 60 years, the U.S. Department of Labor (DOL) announced a final rule clarifying the types of benefits that must be included in determining an employee’s “regular rate of pay” when calculating overtime wages. This new rule becomes effective January 15, 2020. Continue Reading

NLRB Reinstates Broad Deferral of Discrimination Cases to Arbitration, Overruling the Obama Board’s 2014 Decision in Babcock & Wilcox

The Trump National Labor Relations Board (Board or NLRB) gifted employers a significant win on the eve of the Christmas holiday with its December 23 decision in United Parcel Service, Inc., 369 NLRB No. 1 (UPS), which announced a return to the decades-old standard for deferring to arbitral decisions in unfair labor practice cases alleging discharge or discipline in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (NLRA or Act). The Board continues to reshape the Act with new decisions that reverse precedents and undo legal restrictions placed on employers during the Obama administration, and its decision in UPS is just the latest in a string of employer-friendly decisions issued this month alone, including Caesars Entertainment, 368 NLRB No. 143 (December 17, 2019)(overruling Purple Communications and freeing up employers to ban employees from using Company-owned computers during their non-work time to engage in protected concerted or union activities); Apogee Retail, LLC, 368 NLRB No. 144 (December 17, 2019)(overruling Banner Health, allowing employers to require employees to keep workplace investigations confidential and banning them from discussing them with other employees); and Valley Hospital Medical Center, 368 NLRB No. 139 (December 16, 2019)(holding that an employer is free to unilaterally cease union dues checkoff after a CBA expires). Our recent blog article addressing these critical decisions can be found here. Continue Reading

Ending Up On The Naughty List: Dismissal Of A Pending Appeal Under The Disentitlement Doctrine

The end of the year is often a time of self-reflection to determine if one has ended up on the “Nice” or “Naughty” List. In appellate practice, ending up on the “Naughty List” can result in serious consequences, including the dismissal of a pending appeal and a forfeiture of substantive legal rights, regardless of the merits of the underlying appeal. Continue Reading

Employers May Now Forbid Employees Using Co. Email for Protected Concerted Activities, Forbid Employees from Discussing On-Going Workplace Investigations, and Cease Checking Off Union Dues

The Trump National Labor Relations Board (NLRB) continues to reshape the National Labor Relations Act (NLRA or Act) with new decisions that reverse precedents and undo legal restrictions placed on employers during the Obama administration. Over the past week alone and coming on the heels of the current Board’s issuance of new more employer friendly election regulations, the Board issued three important cases that warrant management’s attention. What follows is a brief summary of these new cases and an explanation of how they are likely to effect the workplace. Continue Reading

Pay Day, Every Day? Instant Pay Apps and Their Wage and Hour Implications

As peer-to-peer payment applications proliferate and on-demand technologies reach new facets of people’s lives, it is only natural that these programs now offer services geared particularly for employees. On-demand, daily pay apps, also known as “instant pay” or “earned wage access” are the outgrowth of two fundamental truths: (1) millions of Americans live paycheck to paycheck; and (2) employees perform their actual work and earn their actual wages up to two weeks before they receive their paychecks.

Instant pay apps offer to bridge the gap between when one’s expenses come due and one’s paycheck issues, by allowing employees to withdraw the wages they have already earned for work performed in a pay period, before the regular pay date. Hailed as a panacea by employees, who otherwise would be vulnerable to predatory payday loans, these instant pay apps unsurprisingly implicate multiple California wage and hour laws that an employer must comply with. As a result, employers considering rolling out these programs must carefully balance their potential legal risk against the benefit these apps offer employees, and should understand the potential protections available to an employer. Continue Reading

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