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National Labor Relations Board Proposes New Joint-Employer Rule

Rule Would Return To Direct and Immediate Control Test, But Adds New Requirement That Such Control Be “Substantial” On September 14, 2018, the National Labor Relations Board (“NLRB” or the “Board”) published in the Federal Register a Notice of Proposed Rulemaking (“Notice”) proposing a new rule to be applied by the NLRB to determine whether … Continue Reading

Ensure Your Company’s Public Relations Response Plan Follows These Key Employment Law Principles (US)

When a public relations issue strikes, it can be difficult to find time to implement new procedures or educate employees on new legal concepts. This is particularly true where social media can trigger a public relations crisis almost instantaneously. Accordingly, an organization should develop a public relations response plan before it needs one.… Continue Reading

Eyes and Ears on the FLSA – U.S. Department of Labor Issues New Opinion Letters and Schedules Public Listening Sessions (US)

On August 28, 2018, the Wage and Hour Division of the United States Department of Labor (“WHD”) issued four new opinion letters interpreting various aspects of the federal Fair Labor Standards Act (“FLSA”).  In addition, the WHD has announced plans to analyze and consider changes to the FLSA’s white collar overtime exemption regulations applicable to … Continue Reading

USCIS Scaling Back Premium Processing for Most H-1B Petitions (US)

In a recent announcement, US Citizenship and Immigration Services (USCIS) advised the previous suspension of premium processing for cap-subject H-1B petitions will continue to February 19, 2019 and will be expanded to include additional H-1B petitions. The expansion will take effect on September 11, 2018. However, USCIS will continue premium processing of pending H-1B petitions … Continue Reading

U.S. Department of Labor Forms New Interagency Compliance Office

This week, U.S. Secretary of Labor Alexander Acosta announced that the Department of Labor (DOL), in collaboration with other federal employment agencies, was creating an Office of Compliance Initiatives (OCI). The DOL, through its various divisions, oversees compliance with and enforces the Fair Labor Standards Act, the Family and Medical Leave Act, the Occupational Safety and … Continue Reading

New York Releases Package of Draft Model Policies for Employers and State Contractors in Response to Sexual Harassment Law Adopted in April 2018

On August 23, 2018, the New York State Department of Labor (“NYSDOL”) released written guidance addressing new requirements under New York State law that are designed to prevent sexual harassment in the workplace.  The material outlines proposed minimum standards, training requirements and other compliance materials for the new state law.  This release comes as the … Continue Reading

California Legislature Passes Bill Prohibiting Arbitration Agreements and Non-Disclosure Agreements Regarding California Employment Law Claims

On August 22, 2018, the California State Senate passed AB 3080, which, if signed into law by Governor Jerry Brown, would invalidate two types of commonly-used employment contracts that have been the subject of significant dialogue in the vast wake of the #metoo movement. First, the bill proposes to prohibit employers from requiring employees to … Continue Reading

NLRB Clarifies Key Developing Issues for Union and Non-Union Employers (US)

As most union and non-union employers know, the National Labor Relations Board has updated its standards in several respects over the past year. For some of these updates, the Board has not comprehensively clarified how far they extend or when they apply. In an effort to help clarify employers’ obligations, the Board’s top prosecutor, General … Continue Reading

State Law Round-Up: New Sick Leave, Sexual Harassment Laws and Other State Law Developments (MA, MD, MN, NJ, NYC, TX, VT)

Massachusetts Imposes One-Year Cap and Other Restrictions On Non-Compete Agreements The Massachusetts Noncompetition Agreement Act (see link, at Section 24L) (“MNAA”) effective October 1, 2018, places new restrictions on the length and applicability of non-compete agreements between employers and employees who work within the state of Massachusetts. (Note that the law defines employees to include … Continue Reading

Social Security Administration to Resume Social Security Mismatch Letter Notification Program in 2019 (US)

The Social Security Administration (“SSA”) recently announced that in 2019, it will restart its mismatch letter notification program.  Through “mismatch” letters, formally titled “Employer Correction Requests,” the SSA notifies employers that the social security number (“SSN”) and name reported for one or more employees does not match SSA records.  These notification letters advise employers that … Continue Reading

Upcoming NLRB Developments Should Significantly Affect Employer Property Rights and the Processing of Unfair Labor Practice Charges (US)

Over the last week, the National Labor Relations Board has sent signals that it will significantly change how it addresses certain employer property rights and processes unfair labor practice charges. Although these developments concern relatively nuanced issues, they likely will affect both union and non-union employers in important ways.… Continue Reading

Minutes Count: California Supreme Court Rejects De Minimis Doctrine for Wage Claim

On July 26, 2018, the California Supreme Court ruled in Troester v. Starbucks Corporation that the federal de minimis doctrine does not apply to a California employee’s class action wage claims.  This ruling will have widespread impact, particularly on those employers with large numbers of non-exempt employees such as retailers and food service providers, as … Continue Reading

California’s New Candor: Disclosing Rehiring Ineligibility for Employees Terminated for Harassment

Your company did the right thing: One of your employees reported a violation of your company’s sexual harassment policy, HR did an investigation and found the report credible, and the alleged harasser’s employment was terminated.  The employee is gone, but what do you do if the terminated employee’s potential new employer calls for a reference … Continue Reading

NLRB Announces New Pilot ADR Program

On July 10, 2018, the National Labor Relations Board (NLRB) announced the launch of a new pilot program to enhance the use of its existing alternative dispute resolution (ADR) program. Since 2005, the NLRB has offered assistance to parties in settling unfair labor practice matters pending before the Board through ADR procedures.  According to the … Continue Reading

President Trump Nominates D.C. Circuit Judge Brett Kavanaugh for United States Supreme Court

If confirmed, the Court would have a solid pro-business, pro-employer majority President Trump’s nomination on July 9, 2018 of District of Columbia Circuit Court of Appeals Judge Brett M. Kavanaugh to the U.S. Supreme Court – President Trump’s second nominee in just a year and a half  – is likely to make the top U.S. … Continue Reading

Federal Court: Franchisors and Other Businesses Do Not Create Joint Employment Via “Brand Protection” and Indirect Control (US)

Earlier this decade, hardly a week passed without some court or agency interpreting the joint employment doctrine more expansively than before. Although the National Labor Relations Board created many of these headlines by attempting to treat McDonald’s as the joint employer of its franchisees’ employees and expanding its joint employment test, many courts and other … Continue Reading

US Supreme Court Strikes Down Fair Share Fees for Public Sector Unions

By Wm. Michael Hanna, Emily R. Spivack, and Dylan Yepez On June 27, 2018, the United States Supreme Court decided in a 5-4 decision that public sector unions may no longer collect so-called “fair share” fees from non-members.  The decision will have broad implications for public sector unions and employers. Fair share fees are charged … Continue Reading

U.S. Department of Labor Expands Association Health Plans

On Tuesday, June 18, 2018, The U.S. Department of Labor (“DOL”) released its long-anticipated final rule on association health plans, allowing small businesses to band together by geography or industry to create health plans as if they were a single large employer. Association health plans will not be subject to the Affordable Care Act’s essential … Continue Reading

Employment Litigation Impacted By U.S. Supreme Court Decision Reining In Successive Attempts at Class Litigation

In 1974, the U.S. Supreme Court decided in American Pipe & Construction Co. v. Utah, 414 U.S. 538, that the timely filing of a class action complaint tolls the applicable statute of limitations for all persons encompassed by that complaint. The impact of that ruling was that potential class members did not have to intervene … Continue Reading

National Labor Relations Board Issues More Useful Guidance on Handbooks and Other Policies (US)

Last December, the National Labor Relations Board issued a groundbreaking decision that gave both union and non-union employers more flexibility to protect their interests through employee handbooks and other written policies. This week, the Board’s top prosecutor – General Counsel Peter Robb – expanded on that decision and further clarified when an employers’ written policies … Continue Reading

California’s New “ABC Test” For Independent Contractors Is Anything But Elementary

On April 30, the California Supreme Court adopted in Dynamex Operations West, Inc. v. Superior Court the so-called “ABC test” to determine whether individuals are employees or independent contractors for purposes of determining the applicability of California’s Wage Orders.  The Wage Orders govern important employment issues including California’s unique daily overtime regimen and its requirements … Continue Reading

Summertime Means Vacation – Is Your Vacation Policy Compliant? (US)    

It’s summertime in the U.S., school’s out, and employees are heading off to visit family, the beach, mountains, national parks, and everywhere else, which means it’s a good time for employers to review their vacation policies and practices. No federal or state laws require U.S. employers to provide employees with any vacation time, either paid … Continue Reading

Supreme Court Issues Controversial Ruling On LGBT Rights (US)

In 2012, David Mullins and Charlie Craig visited a Colorado bakery to order a custom cake for their upcoming wedding reception. The owner of Masterpiece Cakeshop refused to design a wedding cake for the same-sex wedding reception, saying he would not use his artistic talents to design a cake that conveyed a message supportive of … Continue Reading
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