It’s OK to Be Different- NLRB Rules That Union Represented Employees Are Not Entitled to Midterm Bargaining Over Same Paid Holiday Granted to Non-Represented Employees

Does an employer automatically engage in unlawful discrimination when it grants an improved benefit to its non-union employees but withholds the improvement from its union employees who are covered by a collective bargaining agreement? In a recent decision, Merck, Sharp & Dohme Corp, 367 NLRB No. 122, issued on May 7, 2019, the National Labor Relations Board (NLRB) said No. This is an important decision because it clearly delineates the difference between mere disparate treatment (which is lawful) and actionable discrimination (unlawful) and brings clarity to an employer’s duty to bargain over changing working conditions during the term of a collective bargaining agreement (CBA). Continue Reading

Supreme Court Rules That Employers Can Be Forced To Defend Against Actions Under Title VII Not Properly Brought Before the EEOC

Resolving a circuit split regarding the jurisdictional nature of Title VII’s charge-filing requirement—the statutory requirement that an employee who alleges that he or she has been subjected to unlawful treatment is required to file a charge with the Equal Employment Opportunity Commission (“EEOC”), or an equivalent state or local agency, prior to bringing suit in court—the United States Supreme Court issued a unanimous opinion on June 3, 2019, penned by Justice Ginsburg, holding that “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.” This decision—which affirms a recent Fifth Circuit decision, is consistent with rulings from the First, Second, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits, but overrules Fourth and Tenth Circuit precedent—has potentially significant implications for unwary employers when defending themselves in a Title VII lawsuit. Continue Reading

Mandatory Backpay in ADEA Claims: What Will SCOTUS Decide?

Baltimore County has petitioned the Supreme Court to decide whether backpay for violations of the Age Discrimination in Employment Act (“ADEA”) is mandatory.

Background

In 1999, two Baltimore County Correctional Officers initiated charges at the Equal Employment Opportunity Commission (“EEOC”) claiming that they were being discriminated against based on their ages because they had to contribute more to the County’s pension plan than younger employees. After years of litigation and various appeals in the U.S. District Court of Maryland and the Fourth Circuit Court of Appeals, in April 2016, Baltimore County and the EEOC entered into a Joint Consent Order to equalize pension member contribution rates. Continue Reading

California’s Meal and Rest Break Rules for Commercial Motor Vehicle Drivers Remain Preempted by Federal Law . . . For Now

Signaling another positive development for interstate motor carriers operating in California, the United States District Court for the Central District of California (the “Central District”) recently dismissed a truck driver’s claims that motor carrier U.S. Xpress failed to provide a class of drivers with legally required meal and rest periods compliant with California law. See, Ayala v. U.S. Express Enters., Inc. et al. Case No. 5:16-cv-00137-GW-(KKx) (Order Granting Partial Summary Judgment). The Court, in granting U.S. Xpress’s motion for partial summary judgment, stated that it did not possess the authority to review the merits of the case since the Federal Motor Carrier Safety Administration (“FMCSA”) determined, in December 2018, that Federal law preempts California state law. The Central District applied the FMCSA’s order retroactively to the Ayala case, filed in 2016, stating that it was bound by the FMCSA order and would apply the order in similar cases unless and until the order was invalidated by the Ninth Circuit. Continue Reading

“Financial Core” – A Dissident Writer’s Recourse

Amid the confusion and tensions of the WGA-ATA dispute over packaging fees and agency ties to affiliated production entities, more than 7,000 termination letters have been sent out to non-franchised agents who once represented WGA members.[1] The mass firing was “mandatory rather than optional”[2] and 92% of writers who voted in favor of the Code of Conduct acted in concert as insisted by the Guild. As WGA West president David A. Goodman said, “when the guild takes action, we do so as a group… we don’t ask an individual member to take a stand. We do it together…”

The WGA has sent a strong message to the ATA through the coordinated firing, but there remains uncertainty as to how the average writer will procure employment when he or she no longer has ccess to the only person (other than the writer him/herself) that is legally entitled to procure employment—a licensed talent agent.[3] Continue Reading

“Panic Button” Laws Make Their Way Across The U.S.

Last August, 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 emergency contact devices, referred to as “panic buttons,” may be used to summon help if the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence. The Chicago ordinance took effect July 1, 2018. Continue Reading

No Evidence? No Problem! National Labor Relations Board’s General Counsel Memorandum Eases Burden On Beck Objectors Following Board’s Decision in Kent Hospital

On April 29, 2019, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) issued Memorandum GC 19-06, which provides guidance to the Board’s regional offices on how to handle cases involving Beck objectors and how to allocate secondary expenses related to union lobbying activity after the Board’s March 1, 2019 decision in United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (2019). In Communications Workers of America v. Beck, the Supreme Court held that a union cannot use agency fees collected from a non-member employee—that is, an employee subject to a union security clause but who chooses not to be represented by the union—on activities unrelated to collective bargaining, contract administration, or grievance adjustment if the non-member employee objects to such an expenditure (a so-called “Beck objector”). 487 U.S. 735 (1998). As we recently explained in our March 2019 post covering Kent Hospital, the Board further limited the permissible uses of agency fees by ruling that lobbying costs incurred by a union fall outside the scope of a union’s statutory duties as the exclusive bargaining representative of non-member employees. Continue Reading

The Future of Independent Contractors: Ninth Circuit Applies Dynamex Retroactively and the DLSE Issues Opinion Letter Expanding Its Scope

Last year, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court of Los Angeles, a landmark decision that dramatically increased the risk of misclassifying individuals as independent contractors. As previously reported, although Dynamex replaced the longstanding Borello standard with the “ABC” test, it also left two critical questions unaddressed. First, Dynamex did not address whether the ABC test applies retroactively. Second, Dynamex did not decide whether its scope was limited to coverage under the Industrial Wage Commission’s (“IWC”) Wage Orders or if its holding generally applied to the Labor Code as a whole. In the last five days, both questions have been answered.

On May 2, 2019, the Ninth Circuit found that Dynamex applies retroactively under California law in Vazquez v. Jan-Pro Franchising International, Inc., the most notable decision to date regarding Dynamex’s retroactivity. Shortly thereafter, on May 3, 2019, the Division of Labor Standards Enforcement (“DLSE”), California’s wage and hour enforcement agency, issued a letter opining the ABC test applies to both the IWC Wage Orders and any Labor Code provisions that enforce requirements set forth in the Wage Orders. Although neither the Ninth Circuit nor the DLSE can authoritatively interpret California law, these developments indicate that Dynamex’s scope—which governs hundreds of thousands of independent contractor relationships throughout the state—has continued to expand its already extensive reach. Continue Reading

EEOC Announces Decision to Collect 2017 Employee Pay Data, in Addition to 2018 Pay Data, by September 30, 2019

In connection with last month’s ruling from a Washington, D.C. district court reinstating the U.S. Equal Employment Opportunity Commission’s (“EEOC”) collection of employer pay data previously stayed by the Office of Management and Budget (“OMB”) (Component 2 of the revised EEO-1 form), as previously reported here, the EEOC announced on May 2, 2019 that it has opted to collect Component 2 data for 2017 in addition to 2018. On April 25, 2019, the district court ordered the EEOC to collect a second year of pay data from select employers, giving the EEOC until May 3, 2019 to advise whether it would collect 2017 or 2019 data. Continue Reading

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