NLRB’s Division of Advice Gives “Advice” As to the Application of Boeing — When a Work Rule/Employment Agreement is Facially Valid Under the NLRA in Union and Union Free Workplaces

In The Boeing Company, 365 NLRB No. 154 (2017), the National Labor Relations Board (NLRB) reassessed the standard it would apply when determining the facial validity of otherwise neutral work rules based upon a balancing between a given rule’s negative impact on employee’s ability to exercise their statutory rights and the rule’s connection to an employer’s right to maintain discipline and productivity in the workplace. For the purpose of applying this new balancing standard, the Boeing Board trifurcated all work rules into one of three distinct categories. First, a Category 1 rule is a work rule that does not prohibit or interfere with the exercise of statutory rights or one whose potential impact on statutory rights is relatively slight or outweighed by the business justification associated with the rule. According to Boeing, the maintenance of such rules is to be considered lawful. Next are Category 2 rules, which are neither “obviously” lawful nor unlawful and which may adversely impact NLRA-guaranteed rights. Under Boeing, their lawfulness is to be determined on a case-by-case basis and depends upon whether the rule’s adverse impact on statutory rights is outweighed by the employer’s interest in maintaining the rule. Finally, Category 3 rules are those that on their face prohibit or limit statutory rights and whose impact on statutory rights outweigh the business justifications associated with the rule. Category 3 rules are facially invalid, rendering their mere maintenance unlawful. Continue Reading

New Federal Legislation Seeks to Eliminate Mandatory Arbitration Agreements

While arbitration as a form of alternative dispute resolution (“ADR”) has long had a presence in American jurisprudence, a recent Supreme Court decision —coupled with significant cultural trends —have left many employers and legislators wondering about the continued viability of mandatory pre-dispute arbitration for all employment disputes.

Is the FAIR Act Fundamentally Unfair to Employers?

On February 28, 2019, U.S. Representative Hank Johnson (D-GA) and U.S. Senator Richard Blumenthal (D-CT) introduced “The Forced Arbitration Injustice Repeal Act” (“FAIR Act”) which seeks to (1) prohibit pre-dispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes, and (2) prohibit agreements and practices that interfere with the rights of individuals, workers, and small businesses to participate in a joint, class, or collective action related to an employment, consumer, antitrust, or civil rights dispute.

The Senate bill is S. 610. It has 33 co-sponsors, all Democrats. It has been referred to the Senate Judiciary Committee, where it is unlikely to receive consideration. The House bill (H.R. 1423), on the other hand, has been referred to the House Judiciary Committee where it is likely to receive active consideration. It has 160 co-sponsors. Continue Reading

For Tax-Exempt Employers: 403(b) Retirement Plan Compliance Opportunity

Tax-exempt employers have a special opportunity to fix compliance concerns with their 403(b) retirement plans. They have through March 31, 2020 – the “Remedial Amendment Period” (RAP) – to retroactively self-correct compliance issues with their 403(b) plan documents, without going through the IRS’ more costly and time-consuming process that would normally be required. An overview of this opportunity is below. Continue Reading

United States Department of Labor Issues Final Rule Concerning Minimum Salary Threshold to Qualify for Exemption from Overtime Under the Fair Labor Standards Act

On March 7, 2019, the United States Department of Labor (“USDOL”) issued its long-awaited proposed rule that would increase the minimum salary threshold to qualify for exemption from the overtime provisions of the Fair Labor Standards Act (“FLSA”) from their current level of $455 per week ($23,660 annually) to $679 per week ($35,308 annually). The proposed rule would also raise the threshold for “highly-compensated employees” from $100,000 annually to $147,414 per year. It is anticipated that the changes will extend overtime coverage to approximately one million United States workers. The proposed rule will be subject to a period of public comment and is anticipated to take effect in January 2020. Continue Reading

I’m Not Paying for That! National Labor Relations Board Increases Rights of Beck Objectors and Further Limits the Activities Unions Can Fund Through Dues Collections

On March 1, 2019, the National Labor Relations Board (“Board”), in a 3-1 decision, ruled that Beck objectors cannot be required to financially support the lobbying efforts of unions because lobbying costs are not chargeable as incurred during a union’s performance of statutory duties as the objectors’ exclusive bargaining agent. United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (2019). This decision comes six years after the Board’s first ruling in this case—a ruling in which the Board found that lobbying expenses can be chargeable to Beck objectors under certain circumstances (which was later vacated by the Supreme Court’s 2014 Noel Canning decision)—and represents the Board’s most recent effort to closely scrutinize the dues charged by unions: recall, for example, the Board’s decision in Teamsters Local 75 (Schreiber Foods), 365 NLRB No. 48 (2017), in which the Board held that Teamsters Local 75 violated the National Labor Relations Act (“Act”) for failing to provide sufficient information to Beck objectors regarding how it calculated the chargeability and non-chargeability of its own dues expenditures, as well as sufficient information about how it determined the chargeability and non-chargeability of the per capita dues paid to affiliated entities. Continue Reading

Ninth Circuit Holds That Statutes Do Not Constitute “Rules or Regulations of the SEC” for Purposes of Sarbanes-Oxley Act Whistleblower Claims

In Wadler v. Bio-Rad Laboratories, Inc., No. 17-16193, 2019 WL 924827 (9th Cir. Feb. 26, 2019), the United States Court of Appeals for the Ninth Circuit held that statutes, including the Foreign Corrupt Practices Act (“FCPA”), do not constitute “rule[s] or regulation[s] of the Securities and Exchange Commission” (“SEC”) for purposes of determining whether an employee engaged in protected activity in a whistleblower claim under Section 806 of the Sarbanes-Oxley Act of 2002 (“SOX”).  This decision clarifies the proper application of the express statutory language of Section 806. Continue Reading

New Dos and Don’ts: New York City Bans Discrimination Based On Hairstyle

On February 18, 2019, the New York City Commission on Human Rights (the “NYCCHR”) released new legal enforcement guidance (the “Guidance”) regarding discrimination on the basis of natural hair and hairstyles. In the Guidance, the NYCCHR advised employers that “[t]he New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their race or identities.” While the NYCCHR made clear that “hair-based discrimination implicates many areas of the NYCHRL, including prohibitions against race, religion, disability, age, or gender-based discrimination,” the Guidance’s directives particularly focus on prohibiting hair and hairstyle discrimination against Black people, defined as “those who identify as African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.” Specifically, the Guidance states that the NYCHRL protects the rights of Black New Yorkers “to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”[1] Continue Reading

Ninth Circuit and California Court of Appeals Rule on Freedom of Religion Rights

Sauce for the goose is sauce for the gander? Not necessarily. The Ninth Circuit and California Court of Appeals recently decided two cases that substantially limit the scope and application of freedom of religion rights rooted in the U.S. Constitution. Together, these cases narrow the definition of the term “minister,” and expand the spectrum of employment law claims which may be brought against a religious employer. This new interpretation of freedom of religion rights may be difficult to reconcile with existing law from the U.S. Supreme Court which bars a minister from bringing employment discrimination claims against a religious employer. Continue Reading

Transgender Discrimination Outlawed in New York

On January 25, 2019, New York Governor Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act (GENDA), which prohibits discrimination based on gender identity or expression. Under the law, “gender identity or expression” is defined as a “person’s actual or perceived gender-related identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”  Continue Reading

California Supreme Court Announces a Win for Payroll Outsourcing Industry

Last week, the California State Supreme Court struck a decisive victory in favor of payroll companies, issuing a unanimous opinion that an employee is not a third-party beneficiary of the contract between her employer and its payroll service provider. The court held that an employee-plaintiff has no standing to sue her employer’s payroll company for an alleged failure to pay wages under California’s employee-friendly labor laws. Continue Reading

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