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  Although non-binding and non-precedential, the memoranda are regarded as authoritative guidance from the General Counsel.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

U.S. EEOC Announces Four-Year Strategic Plan

On February 12, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) approved its Strategic Enforcement Plan (SEP) for FY2018 – FY2022 (SEP).   Congress requires federal administrative agencies such as the EEOC to develop strategic plans every four years and publish their plans on their website.  The EEOC’s plan serves as a framework for the agency in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.  The EEOC’s new SEP outlines three core values:  Commitment to Equal Employment Opportunity, Accountability, and Integrity.  To further these values, the plan sets out the following strategic objectives and outcome goals:

  • Combat and prevent employment discrimination through the strategic application of EEOC’s law enforcement authorities.  The EEOC’s stated goals are: 1) discriminatory employment practices are stopped and remedied, and victims of discrimination receive meaningful relief; and 2) enforcement authorities are exercised fairly, efficiently, and based on the circumstances of each charge or complaint.  The new SEP continues the same substantive area priorities identified by the EEOC in the prior SEP, with some changes to sharpen the agency’s focus and update emerging issues of concern.  The SEP also clarifies the way the substantive area priorities will be integrated into EEOC’s charge management system.  It also reaffirms the importance of strengthening the integration of staff efforts across programs and offices and ensuring accountability to operate as “One EEOC.”

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Supreme Court Narrows Scope of Dodd-Frank Whistleblower Protection (US)

In a decision issued on February 21, 2018, the United States Supreme Court substantially narrowed the class of employees who may claim whistleblower protection under the anti-retaliation provisions of the Dodd-Frank Act.

The Sarbanes-Oxley Act of 2002 (“SOX”) was passed to protect investors from the possibility of fraudulent accounting activities by corporations. In 2010, Congress amended SOX through the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”); the amendment included several provisions applicable to “whistleblowers.” Dodd-Frank defines a “whistleblower” as “any individual who provides…information relating to a violation of the securities laws to the [SEC], in a manner established, by rule or regulation, by the [SEC].” Dodd-Frank provides significant incentives and protections for “whistleblowers.” For example, a whistleblower is eligible for an award if original information he or she provides to the SEC leads to a successful enforcement action. Dodd-Frank whistleblowers also are protected from retaliation (including discrimination and discharge) for making disclosures that are required or protected under SOX. Continue Reading

The contract that never was – IR35 victory for HMRC re-draws battle lines over personal service companies

HMRC has been successful in the first case since 2011 on the intermediaries legislation (known as the IR35 rules) in a case which brings back into the limelight a commonly-used freelancing structure.

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Uncooperative employee loses disability rights protection

The duty on a UK employer to make reasonable adjustments applies only when it knows or ought to know about an employee’s disability. Establishing actual knowledge is easy enough, but what about constructive awareness, where the employer obviously does not know but is nonetheless being expected to act as if it did?

In Gallop -v- Newport City Council in 2013, the Court of Appeal decided that an employer could be saddled with constructive knowledge that an employee was disabled, even in circumstances where the Occupational Health advice it received was that she was not. That superficially surreal conclusion was based on a number of deficiencies in the OH report in that case and (in particular) in the limited questions which Newport had asked its OH provider in requesting it. That made it unreasonable for Newport to rely on the OH evidence, especially in the face of what Ms Gallop herself was telling it to the contrary, hence the adverse finding on knowledge.

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New UK minimum wage rates bring employers closer to non-compliance

Following the Chancellor’s announcement in November’s budget regarding changes to the National Living Wage and National Minimum Wage rates, the National Minimum Wage (Amendment) Regulations 2018 have now been laid before Parliament.

The Regulations implement these increases from 1 April 2018:

  • National Living Wage (Over 25’s) – £7.83 (previously £7.50)
  • 21-24 year olds – £7.38 (up from £7.05)
  • 18-20 year olds – £5.90 (up from £5.60)
  • Under 18s – £4.20 (up from £4.05)

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How deaf is too deaf? – Chief Constable of Norfolk v Coffey

Ruled upon by the EAT at the end of last year, Coffey marks a significant but ultimately unsurprising precedent in terms of perceived disability cases in the UK. The case is the first directly to address the issue of perceived disability discrimination under the Equality Act 2010 and confirms that an employer cannot treat an individual less favourably than others based on a disability it perceives that individual to have, even if he doesn’t. Continue Reading

All the rage – should confidentiality agreements in harassment cases be allowed?

News out this week that a committee of MPs is to look into workplace harassment, and in particular the use of confidentiality wording in settlement agreements arising from harassment allegations. Critics allege, says the BBC New Online, that such clauses are “abused by employers and legal experts to cover up wrongdoing” and used to “buy the silence of victims of harassment and assault”. There may well be pressure to make such provisions unenforceable or even unlawful.

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Good Work, really? – the UK Government’s Response to the Taylor Review

On 7 February the UK Government published its ‘Good Work’ plan, setting out how it intends to take forward the recommendations contained in the Taylor Review of Modern Working Practices published last summer. The Review was tasked with investigating how modern working practices are having an impact on the world of work.

The Government’s press release (issued some hours before the actual response) promised a lot, claiming that “millions” of workers would now benefit from enhanced rights.  The response itself, however, delivered a great deal less in terms of actual concrete proposals to benefit workers in the short term.  All of the big issues, such as how we deal with the complex issue of employment status, are to be the subject of further consultations.  Not in itself a bad thing since employment status is a complex and important issue and it is crucial that the Government considers these issues carefully to ensure that any legislative changes do not lead to unintended consequences, but not quite the revolution which some hoped for.  That said, since the flak attracted by the initial Review came roughly equally from both sides of industry, one can at least commend it for its balance.  The same is not true of the Government’s proposals.

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Birmingham office to host GBCC events on resilience and productivity

Most successful businesses want to grow but what do they mean?  Greater size and/or number of sites, higher output, income and/or profit, larger headcount or a more prominent media profile?   Many see internal investment as the panacea to growth but that also means different things to different businesses – for manufacturing businesses, for example, it could mean investment in more up to date machinery.  Other businesses may find themselves drawn to artificial intelligence or other technology such as interactive apps.  However, one investment channel that is often overlooked as a vehicle for growth is the human one.

The Greater Birmingham Chamber of Commerce has recently launched its ‘Growth through People’ campaign.  This is a 4 week series of free events exploring how business can boost productivity and achieve real growth through improved leadership and people management skills.

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