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
In AHMC Healthcare, Inc. v. Superior Court, the California Court of Appeal, Second Appellate District, Division Four, extended a prior line of California cases holding that California law follows federal law with respect to evaluating the lawfulness of time clock rounding systems. You can read our prior article about See’s Candy Shops I here. Specifically, California follows 29 C.F.R. § 785.48, which permits employers to compute employee worktime by rounding “to the nearest 5 minutes, or the nearest one-tenth or quarter of an hour,” so long as the rounding system adopted by the employer “is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” Continue Reading
This post originally appeared in Law360 on June 14, 2018.
Earlier this year, the California Occupational Safety and Health Administration Standards Board and Office of Administrative Law approved a “Hotel Housekeeping Musculoskeletal Injury Prevention Program” that may result in sweeping changes to hospitality employers’ written policies and training practices concerning workplace injuries. The regulations take effect July 1, 2018, and affected employers have until Oct. 1, 2018, to complete their initial “work site evaluation.”
On June 27, 2018, the United States Supreme Court ruled that mandated payment of so-called “agency fees” by non-union members in the public sector violated First Amendment principles protecting freedom of speech and association. In Janus v. American Federation of State, County and Municipal Employees Council 31, No. 16-1466, 2018 WL 3129785 (June 27, 2018) a 5-4 majority of the Court rejected the holding of the 1977 case Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which permitted such fees, as a wrongly-decided imposition on individual constitutional rights. This landmark decision presents major implications for public-sector union funding in the future, and is notable for all employers with unionized workforces. Continue Reading
On June 19, 2018, District of Columbia residents voted to pass (by a 55.14% to 44.86% margin) Initiative 77, providing for a single minimum wage for all employees, including tipped workers.
The restaurant industry led the opposition to the Initiative noting that the additional labor costs of the minimum wage will need to be sourced by one of the following: (1) through job cuts; (2) by the employer’s overhead; or (3) by passing the costs to the consumer through an increase in the costs of goods and services, which can decrease business and/or decrease the likelihood of customers tipping. Continue Reading
On June 6, 2018, the National Labor Relations Board’s (“NLRB” or “Board”) General Counsel issued Memorandum GC 18-04 (“GC 18-04”), which provides guidance to employers on the legality of certain handbook rules following the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). By way of background, in 2004, the Board issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) if employees would “reasonably construe” the rule to prohibit protected concerted activity under Section 7 of the NLRA. The Lutheran Heritage test gave no consideration to the employer’s stated justifications for implementing the rule, and produced arbitrary and oftentimes nonsensical Board decisions that appeared to hinge on what the then-Board majority believed an employee may think about a particular rule. In Boeing, the Board overruled the “reasonably construe” standard announced in Lutheran Heritage and issued a new test that balanced the impact a reasonably interpreted, facially neutral rule may have on employees’ Section 7 rights with the employer’s business justifications for the rule. The Board noted that work rules will likely fall into three categories: Category 1 rules, which will include rules that the Board deems to be facially lawful; Category 2 rules, which will require individualized scrutiny to determine if the rules are lawful; and Category 3 rules, which will be rules designated by the Board as unlawful. A more detailed discussion of the Boeing case is available here.
On June 5, 2018, in response to a May 29, 2018 letter from Sen. Elizabeth Warren (D-MA), Sen. Bernard Sanders (I-VT), and Sen. Kirsten Gillibrand (D-NY), National Labor Relations Board (“NLRB” or “Board”) Chairman John Ring confirmed that the NLRB intends to move forward with rulemaking on the joint employer standard and that a Notice of Proposed Rulemaking will be issued by the summer. Chairman Ring’s response comes only one month after the NLRB announced in May that it was merely considering rulemaking on the issue. Continue Reading
In an effort to curb workplace violence against healthcare workers, The Joint Commission, a national healthcare accreditation body, recently issued seven actions healthcare organizations are encouraged to implement. Continue Reading
The California Court of Appeals recently decided a new case potentially expanding the scope and impact of Private Attorneys General Act (PAGA) claims brought by an employee against his employer. In Huff v. Securitas Security Services USA, Inc., the court posed the question of “whether a plaintiff who brings a representative action under PAGA may seek penalties not only for the Labor Code violation that affected him or her, but also for different violations that affected other employees.” The court then answered that question in the affirmative, concluding “PAGA allows an ‘aggrieved employee’ – a person affected by at least one Labor Code violation committed by an employer – to pursue penalties for all the Labor Code violations committed by that employer.” Accordingly, an employee alleging a single violation of the California Labor Code may now bring PAGA claims against his employer for all violations, suffered by any other employee, of the same employer. Continue Reading
Many states and municipalities throughout the country have enacted laws that mandate the removal of criminal conviction history questions from job applications. This so-called “Ban the Box” movement theoretically provides individuals with criminal backgrounds the opportunity to obtain jobs for which they otherwise would not have been considered. But, these laws also provide additional burdens for employers and add additional ways for them to face liability. Continue Reading