How Far Can An Employee Go To Protest Working Conditions? NLRB Provides Important Guidance (US)

The newly comprised National Labor Relations Board recently clarified a key outstanding issue for employers: when will an employee’s “outburst” or unprofessional conduct go so far that the National Labor Relations Act cannot protect the employee? The Board’s decision may disappoint employers who hoped the new Trump-appointed members would create a new test. Nevertheless, the decision provides important guidance about how the Board will address these situations going forward. Continue Reading

Employee pregnancy – is ignorance the best defence?

They do say that maternity in the workplace can be an unsettling and confusing time, leaving you confronting new questions and situations that no one has really prepared you for, and where the guidance comes at you from a range of sources as wide as they are inconsistent. Anyway, enough about employers.

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How voluntary is voluntary overtime? – the disability discrimination risk

Back in June 2016, I wrote a piece on the Employment Appeal Tribunal’s decision in Carreras -v- UFPR concerning the extent to which an employer’s expectations can amount to a provision, criterion or practice (PCP) for disability discrimination purposes (specifically, as a trigger for the obligation to make reasonable adjustments). That post is here

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U.S. Department of Labor Announces New Pilot Employer Self-Reporting Program To Address Overtime and Minimum Wage Violations (US)

On March 6, 2018, the U.S. Department of Labor (“DOL”) announced a new, nationwide pilot program which it claims will facilitate quick and efficient resolutions of Fair Labor Standards Act (“FLSA”) minimum wage and overtime violations by allowing employers to promptly pay back wages to employees and at the same time avoid time consuming litigation and fines.  Cleverly named the PAID program (which stands for Payroll Audit Independent Determination), it will permit employers to self-report if they believe they have made errors in wage payments to employees under the FLSA.  The DOL’s Wage and Hour Division will then assess the potential violations to determine how much the employer owes in back wages, and oversee the payments to any current or former employees to whom these payments are owed. Continue Reading

California Supreme Court Applies DLSE Overtime Pay Calculation Requirements Retroactively (US)

Few issues strike fear into the hearts of payroll professionals like trying to calculate overtime pay, especially given the challenges associated with determining the “regular rate of pay,” which serves as the foundation for the calculation of overtime pay for non-exempt, hourly employees. On Monday, March 5, 2018, the California Supreme Court ruled in favor of Hector Alvarado, Plaintiff/Appellant in Alvarado v. Dart Container Corporation of California, providing much needed clarity to employers on how to calculate the regular rate of pay during a payroll period that includes the payment of a flat sum, non-hourly paid bonus (the “Bonus”). The question at issue before the California Supreme Court was one of policy expressed through mathematics: What is the divisor (number to divide total compensation by) for purposes of calculating the hourly value of a flat sum, non-hourly paid bonus; is it all hours worked, or only non-overtime hours worked during the relevant pay period? The California Supreme Court decided that it is the latter, resulting in a higher “regular rate of pay” and hence, a higher premium for overtime pay. Continue Reading

Measure Aimed At Reducing Frivolous ADA Public Accommodation Suits Passes House (US)

On February 15, 2018, the United States House of Representatives voted in favor of adopting the ADA Education and Reform Act of 2017, H.R. 620, which, if approved by the Senate and signed into law, would amend the Americans with Disabilities Act (“ADA”). Title III of the ADA (“Title III”) requires “places of public accommodation” (nearly all businesses and facilities open to the public) to make their facilities and services accessible to individuals with disabilities, including by making structural and design modifications to the facility, as necessary. Though Title III serves a laudable purpose, a cottage industry has developed whereby serial Title III litigants and their counsel, spurred on by the potential to recover attorneys’ fees, file countless lawsuits against businesses without any pre-suit attempts to reach an amicable resolution of their alleged claims. Continue Reading

Practical Guidance on the GDPR – Part 7

A client put this to us the other day – assuming that a photo or video footage of a current or former employee counts as his personal data, which it does, how far will his GDPR “right to be forgotten” allow him to reach into the employer’s records and require that image to be deleted?

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NLRB Developments Raise Questions About New Joint Employer Test (US)

The National Labor Relations Board experienced a setback on Monday, just two months after it overturned its predecessors’ employee-friendly test for determining when entities constitute joint employers. These developments create some uncertainty and, at a minimum, delay the Board from implementing the new test it created last December. Continue Reading

Title VII Bars Sexual Orientation Discrimination, Says Second Circuit Court of Appeals (US)

Last spring, we reported that the Seventh Circuit Court of Appeals (which hears appeals from Illinois, Indiana, and Wisconsin federal trial courts) had become the first federal appellate court to conclude that Title VII’s sex discrimination prohibition also precludes discrimination based on sexual orientation. On February 26, 2018, the Second Circuit Court of Appeals, ruling en banc, became the second appellate court to hold that Title VII bars discrimination based on sexual orientation, explicitly reversing prior Circuit authority to the contrary. Continue Reading

NLRB Releases Slew of Advice Memoranda Providing Interpretative Guidance On Labor Issues (US)

During the first month and a half of 2018, the National Labor Relations Board (“NLRB” or “Board”) released a torrent of memoranda authored by its Division of Advice (“Advice”), a section of the NLRB’s Office of the General Counsel.  As you may have read on our blog before, Advice memoranda are issued by the NLRB’s General Counsel in response to requests from NLRB regional offices for interpretation of the National Labor Relations Act (“NLRA”) in  fact-specific situations.  Although non-binding and non-precedential, the memoranda are regarded as authoritative guidance from the General Counsel.

Advice memos are generally confidential and only are released to the public, in the discretion of the General Counsel, after the case in which the advice sought has been resolved (or occasionally under other unique circumstances).  Because of this, the memos are often released months, and sometimes even years, after they are first issued.  Indeed, several of the memos in this recent 2018 flurry date back to 2013, and one as far back as 2009.  These older memos must be read with caution, as intervening changes in NLRB policy or legal interpretation of the NLRA that occurred subsequent to a memo’s issue date will necessarily impact its usefulness as an interpretative resource.

For example, several of the recently-released Advice memos applied legal standards that the NLRB overturned in December 2017, such as those relating to the NLRB’s take on employer policies.  As you know from our blog, employers became more optimistic when the NLRB, in The Boeing Group, overruled its previous legal standard – the Lutheran Heritage standard, named for the case in which it was announced – under which it analyzed and so commonly found employer policies to be unlawful, and in its place stated a new standard promising to provide greater consideration to employers’ interests in maintaining workplace policies.

The list of recently-released Advice memoranda – 44 just in February 2018, so far – includes only two Advice memoranda issued this year.  Below is a summary of these two memos, and some other more recent memoranda that would be of interest to any employer, whether union-organized or not. Continue Reading