On December 14, 2017, the National Labor Relations Board discarded its longstanding rule that facially neutral employer rules are unlawful if an employee would “reasonably construe” the rule as prohibiting an employee from engaging in protected, concerted activity under Section 7 of the National Labor Relations Act (NLRA). Moving forward, the Board held, it will balance the employer’s justification for the rule against the impact on NLRA rights, and take into account the facts and circumstances including the relative importance of the employer’s justification, the particular work setting or event, and the importance of the NLRA right at issue. This decision overrules 13 years of precedent, and offers some measure of respite to employers stumped by the Board’s past approach to evaluating handbooks, social media standards, technology policies, conduct rules, and other common workplace policies.
As most human resources professionals know, documentation can often make or break an employment lawsuit. A thorough paper record of an employee’s performance problems, complaints, job requirements, attendance, and/or breaks and working time can aid employers when faced with an agency filing or lawsuit. While this paper record may not stop a legal complaint, it can provide critical leverage in settlement negotiations or result in early dismissal of a discrimination or wage and hour lawsuit. A lack of documentation, on the other hand, can result in overtime or vacation wages owed, allow discrimination or retaliation claims to proceed that otherwise could have been resolved swiftly, or constitute violations of recordkeeping laws.
Boyne Resorts, the company which operates Loon Mountain ski area in New Hampshire, Sunday River and Sugarloaf in Maine and several other ski areas in the US and Canada has announced that all employees will be required to wear safety helmets while working on the snow. This applies not only to ski and snowboard instructors who routinely wear helmets, but all other workers who get around the mountain on skis or snowboards. Bicycle helmets will also be required for employees while on duty. This follows the death last season of a Sugarloaf employee. The incident was investigated by OSHA which issued a citation for a serious violation of workplace safety rules and levied a fine of $11,408.
Attorney General Jeff Sessions on October 4, 2017 issued a memorandum to all US Attorneys signaling a change in the previously articulated position of the United States Department of Justice (DOJ) on transgender employment discrimination. The memorandum, entitled Revised Treatment of Transgender Employment Discrimination Claims, states that in pending and future cases, the DOJ will take the position that Title VII of the Civil Rights Act of 1964 does not provide protection against discrimination based on gender identity. Sessions concedes that some federal courts have interpreted the law differently, and advises his US Attorneys to preserve the issue for “further review” or appeal.
In a brief court filing on Tuesday, the Trump Administration dropped its appeal of the injunction preventing the Obama Administration’s new overtime rule from going into effect.
The new overtime rule, which was supposed to have gone into effect last December, would have raised the “salary level test” for executive, administrative, and professional workers from $455 per week to $913 per week. Continue Reading Overtime Rule Update: Trump Administration Drops Its Appeal
Yesterday, Judge Amos Mazzant, a federal judge based in Texas, issued an order invalidating the Obama-era overtime rule that would have made more than 4 million additional workers eligible to earn overtime.
Last week, Governor Baker signed the Pregnant Workers Fairness Act into law, which guarantees greater protections for pregnant women and nursing mothers in the workplace. The bill had unanimously passed in both the House and Senate. The law prohibits employers from discriminating against an employee because of pregnancy or the need to express breast milk for a nursing child and from denying these employees a reasonable accommodation when it would not cause the employer undue hardship.
Please click here for a more detailed discussion of the law.
The law will take effect on April 1, 2018. Employers should start reviewing their current policies now in order to make the necessary revisions to comply with the law.
Our April 5, 2017 post highlighted a decision of the Seventh Circuit Court of Appeals finding that Title VII protections against discrimination on the basis of gender extend to sexual orientation. That court referenced US Supreme Court decisions such as the 2015 same sex marriage case, Obergefell v. Hodges, in concluding that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
A few weeks ago, the Department of Labor filed a brief with the Fifth Circuit Court of Appeals in which it backed away from the $913 per week salary level test set in the 2016 amendments to the FLSA overtime rules. In that brief, the DOL stated that it would soon publish a request for information seeking public input to be used by the DOL in drafting a new proposed overtime rule.
In a highly-anticipated decision issued yesterday, the Massachusetts Supreme Judicial Court reversed a lower court’s dismissal of a suit filed by a woman who was fired because of her off-duty use of medical marijuana. The SJC held that the woman’s claims for disability discrimination under the Massachusetts antidiscrimination statute, G.L. ch. 151B, could go forward.