Will the NLRB GC’s “Suggested” Manual Election Protocols Matter?

On July 6, and after consulting with the Board’s Regional Directors (“RDs”) and other of the Agency’s internal stakeholders, the NLRB’s General Counsel (GC) issued Memorandum GC 20-10 offering suggested protocols for the RDs to follow as a way of returning to manual elections in light of the ongoing pandemic.  Before COVID-19, the overwhelming majority of National Labor Relations Board-conducted representation elections were done manually.  Board agents typically came to an employer’s place of business, set up a voting booth and employees were allowed to vote en masse on whether or not they wished to be represented by a union by manually marking a paper ballot.  Elections were run in this manner because the workplace was where almost all of the employees were physically present and maximum employee participation in the election process could be assured.  In addition to providing a level election playing field favoring neither management nor labor, and minimizing the Board’s physical oversight of the voting process, manual voting guarantees that elections can be held under laboratory conditions by greatly minimizing the risks of inappropriate conduct that could adversely affect the outcome of an election. Continue Reading

Board Invites Briefs and Signals a Possible Shift in Its Contract Bar Rules

On June 23, the National Labor Relations Board’s (Board or NLRB) issued a decision in Mountaire Farms, Inc., 5-RD-256888 in which the Board granted review of a Regional Director’s decision applying the Board’s contract bar doctrine, finding that the case presented substantial issues warranting the NLRB’s review and announcing its intention to establish a schedule for the filing of briefs on review and inviting amicus briefs.  On July 7, the Board acted on that intention and issued a Notice and Invitation To File Briefs in the case (Notice). Continue Reading

U.S. Supreme Court Backs Broad Interpretation of the “Ministerial Exception,” Shielding Religious Employers From Employment Discrimination Claims

On July 8, 2020, the Supreme Court gave religious employers wide leeway to hire and fire employees whose duties include religious instruction without having to worry about employment discrimination suits. In a 7-to-2 decision, the Supreme Court ruled in Our Lady of Guadalupe School v. Morrissey-Berru that the “ministerial exception” – a legal doctrine that shields religious employers from anti-discrimination lawsuits – foreclosed the adjudication of two discrimination lawsuits brought by Catholic school teachers. Continue Reading

OSHA Publishes Responses to Frequently Asked Questions on Worker Safety During COVID-19 Pandemic

On July 2, 2020, the federal Occupational Safety and Health Administration (“OSHA”) published an FAQ web page based on COVID-19 related inquiries that the agency received from the public.  The FAQ page provides a central location for information and links on a variety of topics related to best practices to ensure worker safety and protect workers’ rights during the ongoing pandemic.  Although the majority of the guidance contained in OSHA’s responses is not new, employers should review the FAQ page to ensure their health and safety policies and procedures follow OSHA’s recommendations.  This article lists the topics covered by the new FAQ page and identifies a few topics that may be of particular interest to employers. Continue Reading

California Places More COVID-19 Related Restrictions on Businesses and Employers

On July 1, 2020, as a result of rapid increases in the number of COVID-19 cases throughout California, and on the heels of the Fourth of July long weekend, Governor Gavin Newsom instructed businesses in 19 counties across the state to roll back their reopenings for at least the next three weeks.  The Governor’s instructions require the closure of:

  • All indoor, in-person dining at restaurants (outdoor dining and takeout are still permitted, so long as social distancing protocols are followed);
  • Indoor tasting rooms and wineries;
  • Indoor museums, zoos, and aquariums;
  • Indoor movie theaters and family entertainment centers; and
  • Cardrooms and satellite wagering facilities.

Continue Reading

New York’s First Department Appellate Division Highlights the Stringent Requirements for Reasonably Accommodating Individuals with Disabilities Under New York City Human Rights Law

On June 18, 2020, the First Department issued Hosking v. Memorial Sloan-Kettering Cancer Ctr., 2020 N.Y. Slip Op. 03484 (1st Dept. June 18, 2020), a decision analyzing the more stringent requirements under the New York City Human Rights Law (“NYCHRL”) for employers to reasonably accommodate individuals with disabilities, compared to the requirements under the New York State Human Rights Law (“NYSHRL”) and the Americans with Disabilities Act (“ADA”). In Hosking, the First Department determined that plaintiff’s disability discrimination claims under the NYSHRL and NYCHRL properly survived summary judgment as issues of fact were raised about whether the defendant sufficiently engaged in a cooperative dialogue to accommodate plaintiff’s disability prior to terminating her employment. Continue Reading

DOL Issues Guidance on FFCRA and Summer School/Camp Closures

The summer season is normally a time the children are off to summer camps, enrichment programs, or summer school sessions.  This year, however, employees are finding themselves without available childcare in the wake of continued widespread COVID-19-related closures.  As state and local governments vacillate between easing and increasing restrictions, normal summer programs may be unavailable, or if open, may be operating at significantly reduced capacities. Continue Reading

What Does the Supreme Court DACA Decision Mean for DACA Employers and Employees?

Court Decision

On June 18, 2020, the U.S. Supreme Court ruled that the U.S. Department of Homeland Security (DHS) decision in 2017 to rescind the Deferred Action for Childhood Arrivals (DACA) program violated the Administrative Procedures Act (APA) because it was implemented without the required Notice and Comment and without publication of a final rule that articulates the reasonable basis for the agency’s actions.  As such, the Court ruled that DHS’s action was arbitrary and capricious. Continue Reading

OSHA Issues New COVID-19 Guidance Answering Practical Questions on Returning to Work

On June 17, 2020, the federal Occupational Safety and Health Administration (“OSHA”) issued its “Guidance on Returning to Work.”  This new guidance is intended to supplement the previous “Guidance on Preparing Workplaces for COVID-19” that OSHA published in March.  Most non-essential businesses throughout the country have already reopened and returned at least some portion of their workforce to the workplace.  However, with the risk of occupational exposure to COVID-19 still present, employers must continue to monitor and follow new and evolving federal, state, and local guidance aimed at protecting the safety and health of employees.  OSHA’s new guidance contains “guiding principles” that OSHA recommends employers incorporate into their reopening plans.  In addition, the new guidance provides OSHA’s responses to frequently asked questions on testing and screening employees and identifies specific OSHA standards and requirements that are applicable to minimizing occupational exposure to COVID-19.  Because much of the new guidance deals with mitigation measures that many employers have already implemented, this article seeks to assist employers with understanding specific directives and concerns in the guidance that are new or may have been overlooked previously. Continue Reading

How the New Presidential Proclamation Regarding Non-Immigrant Visas Affects Your Company

Presidential Proclamation

On June 22, 2020, the White House announced an extension and expansion of Proclamation 10014, which was originally announced on April 22, 2020 and restricted the issuance of and entry on immigrant visas.  The new visa ban expands the restrictions to certain non-immigrant categories. Continue Reading

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