On June 27, 2017, U.S. Secretary of Labor Alexander Acosta announced that the U.S. Department of Labor (USDOL) will reinstate the issuance of opinion letters. You might be wondering why this decision is important to businesses. The answer is two-fold: (1) opinion letters provide interpretation of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) so that employers understand their rights and responsibilities under the law; and (2) opinion letters may be relied upon as a good faith defense to wage claims arising under the FLSA.
At the conclusion of the Obama presidency there remained two open seats on the National Labor Relations Board (“NLRB”). The five member panel operated with two Democrats and one Republican for a significant period of time given the refusal of the Republican Senate to move on confirmation of President Obama’s nominees. Normally, the Board contains three members of the sitting President’s party. Even with only three members, two Democrats, the Board issued many decisions impacting labor/management relations including sweeping pronouncements regarding employee use of social media and employee handbook policies. The NLRB is charged with enforcing the National Labor Relations Act (“NLRA”), which guarantees the right of most private sector employees to organize and to engage in “concerted activity” which includes discussing the terms and conditions of their employment with one another and the public. Many decisions coming out of the Board over the past eight years are viewed as having increased regulation on private sector employers and limiting the ability of private employers to manage their workforces as they see fit.
President Trump took a step toward filling the board by nominating Republican Marvin Kaplan to one of the seats. Kaplan, a former labor and employment attorney, currently serves as counsel at the Occupational Safety and Health Review Commission. He has significant experience with the issues expected to come before the board. Senate representatives indicate that they plan to take up his nomination quickly. President Trump is also likely to nominate someone to the fifth seat quickly in order to establish a Republican majority on the Board. Employers should expect to see a rollback of some of the Obama era policies in the near future.
In follow up to my June 19, 2017 post regarding the trials and tribulations of the workplace culture (among other issues) at Uber, it now appears that the previously announced leave of absence of CEO Travis Kalanick is permanent. Kalanick, amid significant pressures from investors, has tendered his resignation. The embattled executive, still a major shareholder, will remain on the board of directors.
On June 13, 2017, Uber released to its employees excerpts of a damning independent investigation report authored by independent investigators Eric Holder and Tammy Albarran, attorneys with the law firm of Covington & Burling LLP. On February 19, 2017, former Uber engineer Susan Fowler published a blog post detailing allegations of harassment, discrimination and retaliation at the company during her tenure. She also decried the ineffectiveness of Uber’s policies and procedures in addressing such workplace issues. The very next day Uber hired Former Attorney General Holder and his law firm to conduct a review of the issues raised by Fowler as well as diversity and inclusion more broadly at Uber. Continue Reading Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability
The US Department of Labor (“DOL”) announced today that Secretary of Labor Alexander Acosta has withdrawn the DOL’s 2015 and 2016 informal guidance on joint employment and independent contractors. We previously reported on these issues when the guidance was published under the prior Secretary. For more information on the guidance please refer to our posts dated January 28, 2016 and September 29, 2015. The press release cautioned that:
Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.
What does this mean for employers? Effectively, not a great deal. The Fair Labor Standards Act (“FLSA”) and the Internal Revenue Code provide fairly clear guidance on the independent contractor tests, and other federal agencies such as the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have spoken to the issue of joint employment.
More importantly, however, many states, including ALL of the New England states, have very restrictive independent contractor laws. Caution should continue to prevail when supplementing one’s workforce with contractors or consults. Similarly, those businesses which utilize temporary workers from staffing companies or share employees with other related companies should continue to assume that those workers will be considered the joint employees of all who direct their performance or benefit from the services.
It is unknown whether the DOL intends to issue any new guidance on either of these topics.
As an attorney who counsels employers through difficult personnel issues, I am often asked, sometimes even in general conversation, what issues are the “hottest” and most frequent I see in my practice. For the past several years, the task of integrating and returning disabled employees to the workplace is at the top of the list; and of those, the most common and most challenging are the ones involving mental health issues. In addition to identifying when performance problems may be attributable to mental health diagnoses, employers also need to understand how to balance the employee’s rights under the Americans with Disabilities Act with safety and productivity concerns. An upcoming seminar at which one of my colleagues will be presenting features a panel of experts ready to help.
McLane Middleton attorney, Nick Casolaro, will be part of this panel discussion at the Business and Industry Association’s “Employer’s Guide to Mental Health in the Workplace” seminar on May 31, 2017 from 11:30 a.m. to 1:30 p.m. at the Radisson Hotel in Manchester, N.H.
During the presentation, the panelists will answer questions, such as: What can business owners do to encourage recognition and to provide opportunities for treatment? What are the appropriate accommodations? What mistakes must they avoid in handling employees dealing with short-term or chronic illnesses?
For additional information about this event, please click here.
Earlier this week, Massachusetts House of Representatives voted unanimously to pass An Act Establishing the Massachusetts Pregnant Workers Fairness Act, a law that would guarantee greater protections for pregnant women and nursing mothers. The legislation prohibits employers from discriminating against an employee because of “pregnancy or a condition related to pregnancy,” which is defined to include the need to express breast milk for a nursing child. It also prohibits employers from denying pregnant women and nursing mothers reasonable accommodations if requested by the employee unless it would impose an undue hardship upon the employer. The bill provides the following examples of such reasonable accommodations: Continue Reading Massachusetts House Passes Legislation to Protect Pregnant and Nursing Mothers in the Workplace
On March 24, 2017, the United States Court of Appeals for the District of Columbia Circuit in Banner Health System v. NLRB, 851 F.3d 35 (D.C. Cir. 2017) again declined to rule on the National Labor Relations Board’s (“NLRB” or “Board”) position that employers cannot prohibit discussions of matters under investigation absent a specific, case-by-case determination supporting the need for confidentiality. As a result, the Board’s position that employers violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting such discussions absent case-specific evidence that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up” continues in force, with no clear disapproval from the courts. Continue Reading NLRB’s Case-By-Case Scrutiny Standard For Investigative Confidentiality Rules Continues
On March 24, 2017, the U.S. Court of Appeals for the Seventh Circuit ruled that the family of a woman murdered by her Home Depot supervisor at a family event could proceed against her former employer(s) on a theory of negligent supervision, hiring, and retention. In so holding, the Seventh Circuit adopted a broad and novel view of employers’ duty to control managers who engage in criminal activity off the employer’s premises and outside the scope of their employment by abusing their supervisory authority. Continue Reading Seventh Circuit: Negligence Lawsuit May Proceed Against Employer Regarding Supervisor’s Off-Site Murder Of Female Subordinate
Late yesterday, the Seventh Circuit became the first federal appeals court to hold that Title VII’s prohibition on discrimination on the basis of a person’s sex also extends to sexual orientation.
The plaintiff, who is a lesbian, was a part-time adjunct professor at a community college in South Bend, Indiana. She repeatedly and unsuccessfully applied for full-time teaching positions at the college, and ultimately, her part-time teaching contract was not renewed. She believed that the college was discriminating against her because of her sexual orientation, and she filed a claim with the EEOC, and later in federal court. The college moved to dismiss the lawsuit, arguing that she had failed to state a claim on which relief could be granted, relying on a string of cases from the Seventh Circuit and elsewhere holding that sexual orientation is not protected under Title VII. The district court agreed and dismissed the case. A three-judge panel of the Seventh Circuit upheld the dismissal. On further appeal, the full Seventh Circuit took “a fresh look” at its position on the issue, and ultimately decided to overrule its prior precedent. Continue Reading Seventh Circuit Holds that Sexual Orientation is Protected by Title VII