NLRB Signals It May Claw Back Scabby The Rat (US)

One of labor unions’ key tactics relies prominently on balloon animals. Since the late 1980s, unions have used large inflatable animals – such as the infamous Scabby the Rat – to pressure employers and advertise labor disputes without running afoul of certain legal obligations. As we recently discussed on this blog, however, one recent court decision created questions about when unions may lawfully display Scabby, his pal Fat Cat, and any other inflatable animal buddies they may have. Then, earlier this month, the National Labor Relations Board released a memorandum showing that the Board itself might curtail this practice. Continue Reading

European elections: also sneaking into your company?

Between 23 and 26 May coming, more than 400 million European citizens will have the right to vote in the European Parliament elections, albeit some may perhaps do so more enthusiastically than others.

Among those 400 million potential voters, a fair share are in active employment. So what do you need to know about the elections as an HR professional in Europe? We have rounded up the most common questions in the summary below.

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“Proselytise” (vb): (1) to advocate, persuade, cause to adopt; (2) to take material risks with your continued employment (UK)

Here is another case about how far doing your God’s bidding in the workplace protects you from disciplinary action by your employer or, put more prosaically, about the relationship between the unfair dismissal regime and your rights to freedom of religion under Article 9 of the European Convention on Human Rights.

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State Law Round-Up: Developments in Wage and Hour (CO, MA, ME, WA), Non-Compete (WA), Commuter Benefits (NJ), Sexual Harassment (DE), and Sick Leave (Dallas and Minneapolis) Laws. (US)

It’s been an active few weeks since our last State Law Round-Up in mid-April 2019, with a number of bills being signed into new laws and case developments impacting employers in many US states over the past few weeks.

Colorado Failure to Pay Wages as Theft

Effective January 1, 2020, an employer’s failure to pay wages will be classified as criminal theft in Colorado.  Under the new law, an employer commits wage theft when it willfully withholds compensation, falsely denies employees the amount of a wage claim, or underpays a wage claim in order to harass or defraud the individual owed the wage.  The law classifies wage theft as a felony when the amount is greater than $2,000.  Additionally, an employer who pays its employees less than minimum wage will be guilty of a misdemeanor.  Finally, the law eliminates the carve out for employers who are unable to pay wages or compensation because of a Chapter 7 bankruptcy action or similar court proceeding. Continue Reading

NLRB General Counsel Advice Memorandum Is “Uber” Favorable For Gig Economy Companies Utilizing Independent Contractors (US)

In a recently-released Advice Memorandum dated April 16, 2019, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel (“GC”) determined that drivers utilizing Uber Technologies’ smartphone application-based rideshare platform are independent contractors, not employees, under the National Labor Relations Act (“NLRA”).  In arriving at this conclusion, the GC utilized the independent contractor test announced earlier this year in the NLRB’s decision  SuperShuttle DFW, Inc., which we reported about here.  In SuperShuttle, the NLRB reinstated the common law agency test, a ten-factor test in which no one factor is determinative.  Applying those factors in the Uber memorandum, the GC noted that the overarching principal to consider under the SuperShuttle test is a worker’s “entrepreneurial opportunity” – workers who have significant control over their profits and losses are likely independent contractors.  For commercial transportation companies, the GC noted that entrepreneurial opportunity can best be assessed by analyzing the company’s control over how workers perform their work, and how worker compensation relates to the fares collected.  Continue Reading

New York City and New Mexico Protect Employees Who Are Medical Marijuana Users (US)

Medical MarijuanaNew York City

New York City has enacted a first-of-its kind law (Intro. No. 1445-A) prohibiting pre-employment drug testing for the presence of marijuana or tetrahydrocannabinols.

The law makes it an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee “to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”

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EEOC Will Begin Collecting 2017 and 2018 Pay Data from Employers in Mid-July 2019 (US)

Money, finance, business conceptA federal judge recently ordered that the Equal Employment Opportunity Commission (“EEOC”) collect two years of Component 2 EEO-1 data, including employees’ hours worked and W-2 compensation information, from employers with 100 or more employees (and federal contractors with 50 or more employees) by September 30, 2019 (see our post here).  The agency was given two options: (1) require employers to provide 2017 pay data in addition to the 2018 data by September 30, 2019; or (2) require that 2019 pay data be submitted in the Spring of 2020.

In response, the EEOC somewhat surprisingly chose the former and released a Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection for Calendar Years 2017 and 2018 on its website in which the agency indicates that it expects to begin collecting 2017 and 2018 pay data from employers in mid-July 2019.  The agency will notify filers of the precise date the survey will open as soon as it becomes available.  In the meantime, employers should begin gathering and organizing their employees’ 2017 and 2018 pay data in order to prepare for the EEOC’s fast-approaching deadline. Continue Reading

U.S. Department of Labor Says “Gig Economy” Workers Are Independent Contractors, Not Employees (US)

On Monday, April 29, 2019, the United States Department of Labor (“DOL”) Wage and Hour Division issued an opinion letter in response to an inquiry from an anonymous “virtual marketplace company” (“VMC”) concerning whether individuals who provide services through the VMC (“service providers”) are employees or are independent contractors for purposes of federal wage and hour laws.  As defined by the DOL, a virtual marketplace company is “an online and/or smartphone-based referral service that [through a technology platform] connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services.”  VMCs are part of the expanding “gig economy,” and include familiar companies such as Uber, Lyft, Postmates, Fiverr, and others.  Continue Reading

Title VII And LGBT Discrimination: The Path To The High Court (US)

Expanding on her previous post on the subject, on May 1, 2019, Law360 published the following expert analysis authored by Squire Patton Boggs labor and employment attorney Melissa Legault.

After 11 private conferences during which the U.S. Supreme Court justices debated whether to hear the cases, the Supreme Court granted certiorari[1] in three cases involving the extent of protection — if any — provided by Title VII of the Civil Rights Act of 1964 against employment-based discrimination on the basis of sexual orientation and gender identity. The court consolidated the two sexual orientation cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, and allocated a total of one hour for oral argument for both cases.  Continue Reading