On December 7, 2018, the National Labor Relations Board (“NLRB”) issued its 2019-2022 Strategic Plan, which focuses on four primary goals. First, the Board targets a 20% decrease, collectively, in the time required to resolve unfair labor practice charges from filing to resolution. This collective decrease is to be accomplished through incremental decreases of 5% of the time spent in each of four stages of the charge process, including: 1) the initial charge intake stage resulting in dismissal or charge prosecution; 2) processing of a formal complaint through settlement or an administrative law judge (“ALJ”) decision; 3) the time between an ALJ decision and a Board order; and 4) the time between a Board order and case closure (which can include voluntary compliance and completion of Board order requirements, or enforcement of the order through the federal appellate courts). Continue Reading
On December 7, 2018, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously held in Hustvet v. Allina Health System that an employer did not unlawfully terminate an employee who refused to receive a rubella vaccination. The plaintiff, a healthcare specialist working with potentially vulnerable patients, requested an accommodation exempting her from receiving the measles, mumps, and rubella vaccine due to her “many allergies and chemical sensitivities.” She also refused to complete a mandatory health screening. Because she refused to be immunized and examined, her employer terminated her employment. The plaintiff sued under the Americans with Disabilities Act (“ADA”) and Minnesota Human Rights Act (“MHRA”), claiming unlawful inquiry, discrimination, and retaliation. Continue Reading
Earlier this week, the National Labor Relations Board’s top prosecutor clarified how he views several key issues that arise when unions request information from employers. Board General Counsel Peter Robb confirmed that his office will not require employers to automatically inform unions about the amounts the employers have saved due to the recent federal tax cut. The General Counsel also indicated, once again, that he views the duty to furnish information in a more evenhanded way than his recent predecessors.
The General Counsel issued advice memoranda addressing two situations where unions requested information from employers. In the first situation, when the union and employer were bargaining for a new contract, the union requested the employer to disclose the amount the employer saved due to the recent federal tax cut (the Tax Cuts and Jobs Act). The employer previously had announced that it received a “financial benefit” from the tax cut, and claimed it wanted to pass on some of that benefit to employees. The employer had not, however, claimed it lacked the financial ability to provide pay increases. In the second situation, the union requested information to support a grievance about non-union employees performing union work. Continue Reading
It is a common feature in many sectors for potential new recruits to undertake a work trial prior to being offered a permanent role. This type of trial, normally undertaken without pay, has obvious potential for the exploitation of the would-be employee. It certainly leads to a grey area when it comes to National Minimum Wage (NMW) and National Living Wage (NLW) compliance through the question of “when is a work trial actually work?”
In a proposed rule published in today’s Federal Register, the U.S. Citizenship and Immigration Services (USCIS) is resurrecting and modifying a previous proposal from 2011 to implement an electronic pre-registration system for H-1B cap petitions. H-1B visas are for high-skilled “specialty workers” in positions that require at least a Bachelor’s degree in a specific related field. The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap in order to increase the number of beneficiaries with a Master’s or higher degrees from a U.S. institution of higher education to be selected for an H-1B cap number.
Per existing law, new H-1B visas are subject to an annual cap of 65,000 visas (Regular cap) and an additional cap of 20,000 new H-1B visas are available for beneficiaries with advanced degrees from US colleges or universities (US Masters cap).
The new proposal would change the H-1B process in the following ways: Continue Reading
In 2017, the State of Kentucky enacted a right-to-work law, which, as you will recall from our prior posts (see here), bars employees from being required as a condition of employment to belong or financially contribute to a labor union. (Kentucky was the 27th US state to pass a right-to-work law; in 2017, Missouri also passed a right-to-work law, but it was rejected by Missouri voters in August 2018.) Upon the Kentucky law’s passage, representatives of the General Drivers, Warehouseman, and Helpers Local Union No. 89 and the Kentucky State AFL-CIO, Affiliated Union (together the “Unions”) swiftly filed a lawsuit challenging its validity under Kentucky’s state constitution. In November 2018, the Kentucky Supreme Court issued its opinion upholding the law.
Among other things, the Unions asserted in their lawsuit that the Kentucky Right To Work Act (codified at Kentucky Revised Statute 336.130(3)) violated the Kentucky state constitution’s provisions providing for equal protection and prohibiting special legislation because it unfairly discriminates against unions as compared to other organizations in the state. (In Kentucky, special legislation is considered a law that unfairly targets or benefits specific people, organizations, or localities.) The Unions also argued that because federal law requires them to represent non-members, the state right-to-work law, which prohibits them from requiring these non-members to pay union dues, constitutes an illegal requirement that they provide a service without just compensation. Continue Reading
Last week I was proud to speak at Business Forums International’s ‘Vetting and Screening’ Conference regarding the challenges faced by employers when completing right to work checks.
I was delighted to share the platform with speakers from Reed Screening, The Forward Trust, Nick Mann Associates, Credence Background Screening, The Security Watchdog and NSL, who covered other vetting issues including the use of social media, managing risk, employment law, ex-offenders, GDPR and outsourcing.
Delegates’ main concerns about checking the right to work included:
- On whom, when and how do we complete a right to check?
- What’s a statutory excuse?
- What happens if we get a right to work check wrong?
- What impact will Brexit have?
Here are my key hot tips:
On November 15, 2018, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously held in Netter v. Barnes that an employee did not engage in “opposition or participation” activity protected by Title VII of the Civil Rights Act of 1964 when she reviewed and duplicated confidential personnel files without authorization. The plaintiff, an African-American Muslim woman, worked for the Guilford County (North Carolina) Sheriff’s Office for over sixteen years with an unblemished record until she received a disciplinary sanction that barred her from being considered for a promotion. She filed charges with Guilford County Human Resources and the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging that the discipline was an act of race and/or religious discrimination because the Sheriff’s Office had not disciplined other similarly situated officers who were neither African-American nor Muslim. When an investigator from the county HR department asked for evidence to support her discrimination claims, the plaintiff reviewed and copied – without permission – the confidential personnel files of five other employees, and turned those records over the investigator as well as to the EEOC.
Upon learning of the plaintiff’s actions, the Sheriff’s Office decided to terminate her employment because (1) she violated department policy, (2) she failed to conform to work standards established for her position, and (3) she violated N.C. Gen. Stat § 153A-98, which imposes criminal penalties for reviewing or disseminating county personnel files without approval. In turn, the plaintiff filed a new charge with the EEOC, arguing that her employment was terminated because she engaged in protected activity under Title VII, and eventually amended her existing Title VII discrimination complaint to include the new retaliation claim. The district court granted the Sheriff Office’s summary judgment motion on all claims. On appeal to the Fourth Circuit, the only issue before the court was whether Title VII shielded the plaintiff’s actions in copying the personnel records without obtaining authorization to do so. Continue Reading
The mid-term elections are still on people’s minds, as recounts and run-offs for federal congressional and state gubernatorial candidates are finally wrapping up. Meanwhile, and largely taking a media-coverage backseat to these high-profile races, many new state initiatives became law as a result of the mid-terms, three which involved legalizing marijuana for recreational or medical use. These new laws add to the growing body of law rife with conflict between state and federal law regarding the use of marijuana in the United States, particularly in the employment context.
Before the recent election, 31 states had medical marijuana laws on their books. Missouri and Utah, both which passed new medical marijuana laws this month, raised this total to 33. A smaller but still growing number of states have gone further by legalizing marijuana for adult, recreational use (most laws also include regulatory schemes addressing limits on the amount and location of use, among other things). November’s election saw Michigan become the tenth state in the union, plus Washington D.C., to enact a statute legalizing non-medical use of marijuana. North Dakota had a legalization initiative on its mid-term election ballot, but the law did not pass. (North Dakota, does, however, have a medical marijuana law in place. For a comprehensive identification of those states with various levels of marijuana legalization, click here.) Continue Reading
The so-called “big amendment” to the Czech Labour Code is currently under preparation in the Czech Republic. The amendment consists of many interesting proposed changes, one of which, in particular, stands out: the amendment of the Labour Code’s annual leave provision.