Emily Spivack

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Ohio Stay at Home Order as Applied to Schools and Other Public Employers (US)

All individuals in Ohio have been ordered to stay home except as necessary to engage in essential activities, and all non-essential businesses and operations have been ordered to cease, beginning at 11:59 p.m. Monday, March 23, 2020, under the Ohio Department of Health Director’s Stay at Home Order issued on March 22, 2020. The Stay at Home … Continue Reading

EEOC To Give Employees Access to Employer Position Statements Upon Request

The Equal Employment Opportunity Commission recently announced a change that will now provide discrimination claimants with their employers’ position statements. The new uniform policy will mean employees alleging unlawful discrimination will now be able to see their employer’s position statement, instead of merely receiving a verbal summary from the EEOC. To protect confidential and privileged … Continue Reading

Supreme Court Reiterates Preemptive Effect of Federal Arbitration Act

The U.S. Supreme Court has once again reinforced its interpretation of the Federal Arbitration Act, ruling on December 14 that a California state law prohibiting class action waivers in arbitration agreements may not trump the Court’s earlier decision in favor of enforcement of arbitration agreements. In the four years since the Supreme Court’s decision in … Continue Reading

NLRB Expands Its Definition Of ‘Joint Employer’

In a highly-anticipated decision, a divided National Labor Relations Board (NLRB) significantly expanded its definition of “joint employers.”  The new standard portends to have substantial implications to employers across a broad spectrum, but most significantly in the franchisor-franchisee and temporary labor context.  In Browning-Ferris Industries, three members of the five-member Board did away with the … Continue Reading

Noel Canning, Part Deux? Kind of… D.C. Circuit Rules NLRB Complaints Issued By Former Acting General Counsel Are Voidable (But Not Void)

With last year’s Supreme Court decision in Noel Canning only slightly in the rearview mirror, another court has ruled that the NLRB made yet another unlawful end-run around the laws that limit its authority to act.  In a case involving an Arizona ambulance company, the U.S. Court of Appeals for the D.C. Circuit ruled on … Continue Reading

NLRB’s Division of Advice says franchisor not joint employer under current or proposed tests

The National Labor Relations Board’s Division of Advice has issued an advice memorandum finding that a restaurant franchisor is not liable as a joint employer for its franchisee’s alleged unfair labor practices, either under the NLRB’s current standard, or the new standard proposed by the General Counsel in Browning-Ferris Industries. The NLRB’s current joint employer … Continue Reading

Supreme Court Rules EEOC Conciliation Efforts Are Subject to Oversight

On April 29, the US Supreme Court held unanimously that courts may review the Equal Employment Opportunity Commission’s (EEOC) efforts to informally resolve disputes between employers and employees. The EEOC, which is charged with policing compliance with employment discrimination laws, is required by statute to first try informal mediation methods to resolve disputes between employers … Continue Reading

Sixth Circuit clarifies: Demanding a supervisor cease harassment is a protected activity

On April 22, the Sixth Circuit Court of Appeals issued a decision that clarifies that, for purposes of Title VII retaliation cases, an employee’s demand that a supervisor stop his or her harassing conduct constitutes protected activity under the statute. Affirming the findings of several district courts in the circuit, the appeals court held that … Continue Reading

NLRB puts employers in a “damned if you do and damned if you don’t” situation

The National Labor Relations Board repeatedly has found that employers that unilaterally grant a wage increase prior to an impasse in collective bargaining, or absent extenuating circumstances, engage in an unfair labor practice. Thus, in an effort to avoid bargaining-related charges, employers typically seek to avoid making any changes to wages (or benefits) while bargaining … Continue Reading

With Ambush Election Rules Poised To Go Into Effect, NLRB General Counsel Issues Guidance Memo

With President Obama’s veto of Congressional action seeking to bar the implementation of the NLRB’s proposed “ambush election” rules, unless a court enjoins the effective date of the rules in one (or both) of the lawsuits currently pending that challenge the rules, on April 14, new rules will go into effect governing the filing and processing … Continue Reading

California court says Sun Worshipping Atheist can be required to work overtime, even if it means getting less than 8 hours of sleep

Marshel Copple is a “Sun Worshipping Atheist” – a religion he created and of which he is the sole member.  The core principles of Sun Worshipping Atheism, according to Mr. Copple, include: praying in the sun; taking natural fresh air daily; sleeping eight hours or more; eating and drinking when needed; frequent exercise; daily rest; … Continue Reading

D.R. Horton – The Sequel: NLRB Finds Collective Action Waiver in Arbitration Agreement Unenforceable, Rejects Circuit Court Precedent on the Issue

A three-member majority of the National Labor Relations Board on October 28 reaffirmed employees’ right to bring class and collective action claims [pdf].  In a case against Murphy Oil USA, the Board stood by its earlier decision in D.R. Horton, Inc. [pdf] in which it ruled that requiring employees to waive their right to bring class and … Continue Reading