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.
Continue Reading National Labor Relations Board’s General Counsel Releases Memorandum Providing Guidance On Handbook Rules After Its December 2017 Boeing Decision
NLRB Confirms That It Intends To Proceed With Rulemaking On Joint Employer Standard
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 NLRB Confirms That It Intends To Proceed With Rulemaking On Joint Employer Standard
National Labor Relations Board Deviates from Typical Practice and Announces that It is Considering Rulemaking to Address Joint Employer Standard
On May 9, 2018, the National Labor Relations Board (“NLRB”) announced it is considering rulemaking to address the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”). As Chairman of the NLRB John Ring explained in the NLRB’s press release:
“The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.”
Continue Reading National Labor Relations Board Deviates from Typical Practice and Announces that It is Considering Rulemaking to Address Joint Employer Standard
7th Circuit Issues Ruling That Waiver of Statutory Rights under FLSA in Collective Bargaining Agreement Must Be Clear and Unmistakable
On May 15, 2017, the Seventh Circuit issued its ruling in Vega v. New Forest Home Cemetery, LLC, finding that an employee was not barred from bringing a Fair Labor Standards Act (“FLSA”) claim in a judicial forum, despite his failure to exhaust the grievance procedure in the applicable collective bargaining agreement (“CBA”).
Continue Reading 7th Circuit Issues Ruling That Waiver of Statutory Rights under FLSA in Collective Bargaining Agreement Must Be Clear and Unmistakable
National Labor Relations Board Issues Yet Another Decision Finding An Employer’s Work Rules Overly Broad
The National Labor Relations Board (“Board”) recently issued a decision that serves as a reminder for both union and non-union employers that the Board continues to take an aggressive stance on seemingly innocuous employment policies that the Board believes may chill an employee’s exercise of his or her Section 7 rights under the National Labor Relations Act (the “Act”).
Continue Reading National Labor Relations Board Issues Yet Another Decision Finding An Employer’s Work Rules Overly Broad
Department of Labor Issues Final Rule Implementing Executive Order Requiring Paid Sick Leave for Employees of Federal Contractors
On September 29, 2016, the Department of Labor (“DOL”) issued regulations (the “final rule”) implementing Executive Order 13706, which requires federal contractors to provide paid sick leave to their employees. According to the DOL, federal contractors employ 1.15 million individuals—594,000 of whom do not receive paid sick leave. Thus, for contractors who do not currently provide paid sick leave to their employees, the final rule imposes significant administrative and financial burdens. However, given the nuanced requirements of the final rule, even contractors who currently provide some form of paid sick leave to employees may find the final rule burdensome to comply with. Contractors should act now to either develop paid sick leave policies or determine what changes need to be made to their current paid leave policies to ensure that they are in compliance with the final rule once it becomes effective.
Continue Reading Department of Labor Issues Final Rule Implementing Executive Order Requiring Paid Sick Leave for Employees of Federal Contractors
U.S. Department of Labor Issues Proposed Regulations Regarding Federal Contractors’ Obligation To Provide Paid Sick Leave To Employees
On Thursday, February 25, 2016, the U.S. Department of Labor (“DOL”) issued proposed regulations for implementing Executive Order 13706, which requires federal contractors to provide up to 56 hours of paid sick leave to its employees annually. Once finalized, these regulations will have significant consequences for federal contractors; they not only govern how much paid sick leave must be provided to employees, but a variety of other topics, such as which employees are entitled to sick leave, when sick leave can be used, whether sick leave can be carried over from year to year, how employees may request sick leave, and how contractors must respond to such requests.
Continue Reading U.S. Department of Labor Issues Proposed Regulations Regarding Federal Contractors’ Obligation To Provide Paid Sick Leave To Employees
Attention D.C. Employers: Notice Provisions of Wage Theft Prevention Amendment Act Must Be Complied With By May 27, 2015
D.C. employers have until May 27, 2015, to comply with the notice provisions of the Wage Theft Prevention Amendment Act of 2014 ( “WTPAA”), which became effective on February 26, 2015 (“Effective Date”). The WTPAA amended several of D.C.’s wage and hour laws, including the Minimum Wage Act Revision Act (“Minimum Wage Act”), the Living Wage Act, the Wage Payment and Wage Collection Law, and the Accrued Sick and Safe Leave Act.
Continue Reading Attention D.C. Employers: Notice Provisions of Wage Theft Prevention Amendment Act Must Be Complied With By May 27, 2015
Equal Pay Issues Addressed by President Obama on “National Equal Pay Day,” When He Signed An Executive Order and Presidential Memorandum Affecting Federal Contractors
On April 8, 2014, President Obama signed a Presidential Memorandum that will require federal contractors and subcontractors to provide to the U.S. Department of Labor compensation data based on their employees’ sex and race. The President also signed that day an Executive Order preventing federal contractors from retaliating and discriminating against employees who discuss their compensation with their co-workers. The President stated that when employees are prohibited from discussing their compensation with fellow employees, “compensation discrimination is much more difficult to discover and remediate, and more likely to persist.”
Continue Reading Equal Pay Issues Addressed by President Obama on “National Equal Pay Day,” When He Signed An Executive Order and Presidential Memorandum Affecting Federal Contractors