Category: National Labor Relations Act

2019 Labor and Employment Law Predictions

Published by Brett Holubeck on January 4, 2019

2018 was a whirlwind year for labor and employment. There were 3 major Supreme Court decisions. One decision concerned overtime exemptions to the Fair Labor Standard Act where the court found that the exemptions should be interpreted broadly rather than narrowly. The Janus decision held that public sector employees could not be forced to pay an agency fee (public sector employees do not need to pay anything to a union that represents them). Finally, the Court found in the Epic Systems case that employers can require employees to settle employment disputes through arbitration agreements without violating the National Labor Relations Act.

While not as many changes will occur this year in labor and employment, there are still a number of exciting changes that could occur. Here are 10 labor and employment law predictions that I believe will happen next year.

Sexual Harassment Lawsuits Will Increase

The #Metoo movement is not going away in 2018. The preliminary data from the EEOC showed that charges alleging sexual harassment increased by more than 12% from 2017 into 2018. Unfortunately, this is an issue that is not going away. My prediction is that there will be more of these charges and lawsuits going into this year.

There will also be several states that will enact new laws to combat sexual harassment this year. California already has new requirements that just went into effect.

Starting in 2019, employers with five or more employees must provide two hours of training to supervisors and one hour to all other employees within six months of their hire (or promotion to supervisor) and every two years thereafter. Temporary and seasonal employees must be trained within their first 30 days or 100 hours, whichever comes first.

No company wants to be thought of as the company that allowed sexual harassment. Just look at what happened to Mike Isabella, a former Top Chef star, and his restaurants:

But in a Chapter 7 filing on Tuesday, which seeks to operate six restaurants through Dec. 27 before closing them permanently, Isabella argues that the local and national media relentlessly threw shade on his business operations even after he agreed to a confidential settlement in May with former Isabella Eatery manager, Chloe Caras, who sued for “extraordinary sexual harassment.” Isabella, documents note, apologized publicly to a local TV reporter and implemented new “zero tolerance” sexual harassment policies at all of his restaurants. He was ready to “restore confidence in Mike Isabella and his restaurants.”

Isabella lost his restaurants after he was accused of sexual harassment. Now, the accusations against him were very serious and he was the owner of the restaurant and was the one accused of sexual harassment. However, this can happen to any business and can be caused by employees at any level of the business. The issue of sexual harassment in the workplace is not going away. There will be more lawsuits, and charges regarding sexual harassment in 2019 than there were in 2018.

The Supreme Court Will Take a Case to Decide Whether Sexual Orientation is Protected under Title VII

The Supreme Court is considering taking a case to determine whether Title VII protects employees from discrimination based on their sexual orientation. The issue hinges on whether “Because of … sex” includes sexual orientation or is limited to a person’s sex.

Currently there is a split among the Circuit Courts. The 2nd and 7th Circuit have found that Title VII prohibits sexual orientation-based discrimination and the 11th Circuit has found that sexual orientation is not protected under Title VII.

The Supreme Court will grant the writ of certiorari and they will review the case. If the Supreme Court decides to review the issue, then it will be one of the most important cases that the Court considers next term.

The Department of Labor Will Increase the Salary Threshold for the Overtime Rule

The Department of Labor is still undergoing rulemaking to raise the salary threshold that is required to meet the overtime exemption, which allows companies to pay workers a salary and not have to pay employees overtime regardless of the number of hours that they work in a week. Currently, an employee must be paid at least $455 per week (which equals $23,660 annually) to meet the salary threshold. In 2016, the Obama administration raised the salary threshold to $913 a week (or $47,476 a year). A federal district judge eventually blocked that rule and questioned the DOL’s ability to set any salary requirement to be exempt from overtime.

The DOL will attempt to raise the threshold to around $33,000 this year probably in March. The new salary threshold will be challenged again to determine whether the DOL even has the authority to set a salary threshold.

Paid Family Leave is Coming

As I said in a prior post, paid family leave is coming. This is a question of when and not if. I believe that it will be implemented either this year or next year. Here is what I said in my earlier post.

Various politicians have expressed their support for paid family leave. Ivanka Trump and The White House have discussed their support for family leave. Marco Rubio introduced a plan to allow new parents to delay taking their Social Security benefits in exchange for two months of paid parental benefits. The Democratic Party Platform also called for paid family leave.

One poll showed that 54% of Americans think the government should require all employers to provide 12 weeks of paid family and medical leave. Only 29% of the respondents disagreed and 17% were undecided. With as much support as there is for paid family leave, it seems certain that Congress and the President will eventually enact a paid family leave law.

The National Labor Relations Board Will Issue a Joint Employer Standard

In September, the NLRB had issued a notice of proposed rulemaking to change the joint employer standard. The joint employer standard is important to determine whether companies are liable for violations of the law that are committed by staffing companies or franchises. For example, McDonalds has been combating a charge that it is a joint employer with its franchisees and is responsible for these small business owners firing employees that wanted higher wages.

Here is the release from the NLRB with the proposed rule:

Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

Unfortunately for the NLRB, the DC Circuit Court recently found that:

the question of whether there is a joint employment relationship under the National Labor Relations Act (NLRA) must be answered by applying the common law test for whether there exists an “agency” relationship. The Board has no special expertise relevant to defining the common law of agency. Therefore, according to the Court of Appeals, the Board is awarded no deference in this area. In other words, the Board does not have the right to define or redefine joint employment in a way that would be inconsistent with the common law meaning of “agency.”’

My prediction is that the NLRB moves forward with its rulemaking and ignores the decision of the DC Circuit. This will have a big impact on employers that use staffing companies because they will not (generally) be liable for violations that the staffing company commits against its employees unless the company exercises direct control over the employees rather than merely having the ability to direct the staffing company employees.

To clarify, it is basically the difference between a supervisor of a hotel telling the landscaping crew (that is employed by a staffing company) how to perform their jobs and exactly what needs to be done (direct control) versus the staffing company supervising, disciplining, and directing the employees with the supervisor or owner of the hotel merely having the authority to direct these landscaping employees (indirect control).

I know it is a bit convoluted, but it is incredibly important. Depending on how this decision turns out it could have a big impact on any company that franchises businesses. Yes, that means that it will impact every McDonalds and Chick-Fil-A owner.

Independent Contractor Issues Will Arise in Many States

Independent contractors are everywhere and the law concerning them is far from settled. My prediction is that more states will seek to limit the abilities of companies to use independent contractors especially when these contractors form a part of the company’s core business (think UBER drivers).

The California Supreme Court issued a landmark decision last year and the effects are still being felt. Below is the new test (called the ABC test) that the court implemented. For a worker to be an independent contractor the company must show:

1) that the company does not direct the worker in the performance of her job, 2) that the worker performs work outside the scope of the company’s typical business (such as a freelance artist who designs fliers for a moving company), and 3) that the worker has made the affirmative decision to go into business for herself, perhaps by incorporating or starting an LLC.

New Jersey and Massachusetts also use the ABC test to determine whether a worker is an independent contractor. Many of the companies that use independent contractors have a bad reputation and it is likely that more state supreme courts and possibly legislatures will adopt the ABC test. Regardless, it will get harder (at the state level) for companies to employ independent contractors.

More States will Protect Medical Marijuana Users from Discrimination

More states will change their stance on medical marijuana and whether employees that use it are protected from discrimination. Currently Connecticut, Massachusetts, and Rhode Island protect employee use of medical marijuana and prohibit employers from firing those employees for off duty medical marijuana use. In December, a Delaware judge allowed a case involving a medical marijuana user that was fired after failing a drug test to move forward.

We may not get a decision on this case this year, but it is likely that Delaware will join Connecticut, Massachusetts, and Rhode Island in protecting off duty medical marijuana use, and more states will follow suit.

Unfortunately for employers, there is not a good test that can measure impairment for marijuana, which is why more states protecting off-duty marijuana use will cause problems for employers. Until there is a test that can measure impairment, increased training will be critical so that supervisors can observe employees that appear to be impaired.

You can see my earlier post regarding addressing marijuana in the workplace here.

Notices of Inspection (I-9 Audits) Will Increase

There will be more Notices of Inspection (I-9 Audits) against businesses this year. As I said in a prior post about Notices of Inspection:

Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018.

Immigration enforcement is a priority for the Trump Administration.

The Supreme Court Will Issue a Decision About DACA. A Deal Will be Reached to Allow DACA Recipients to Remain in the US.

Either the Supreme Court will issue a decision about DACA or there will be new legislation that will solve the DACA issue. DACA holders will achieve some form of permanent or semi-permanent status that will allow them to remain in the US.

As I said in a prior post about DACA:

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today [(November 8)] the Ninth Circuit ruled that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The Trump Administration has already appealed the decision of the Ninth Circuit to the Supreme Court. This is an issue that will likely be decided within the next year or so through a bipartisan deal.

The Spouses of H-1B Visa Holders Will Lose their Work Authorization While They Wait for a Green Card

H-1B spouses will lose their lawsuit to retain their work authorization while waiting for their green card.

There is currently a lawsuit about whether spouses on H-4 visas will be allowed to obtain work authorization while they wait for their green cards after their I-140 is approved. This is especially important to immigrants from India and China as they may wait years (sometimes even more than a decade) until they are able to get a green card after their spouse’s immigrant petition has been approved. Unfortunately, I believe that they will eventually lose their lawsuit. Administrative agencies have a lot of authority to change their positions on regulations.

Conclusion

I do not believe that it will be a year with as many changes in labor and employment law (at the federal level) as last year because Congress is split. However, many states will undoubtedly try to fill in the gap. The Supreme Court could also cause major changes in labor and employment law by reviewing whether sexual orientation is protected under Title VII.

These are my 2019 labor and employment law predictions. I’ll write a post at the end of the year to let you all know whether my labor and employment law predictions came true.

Happy New Year Everyone!

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Talking Politics at Work (AKA How to Make Everyone Mad)

Published by Brett Holubeck on November 4, 2018

Picture of a finger with an "I voted" sticker on it. It aligns with the theme of politics at work because people will often wear I voted stickers. — Photo by Parker Johnson on Unsplash

It is election time. which is an interesting time to be working with people of all political persuasions.

Many workplaces have employee evangelists explaining how America as we know it is over if <insert their favorite politician here> is not elected. Others are saying that it may already be too late, and America is doomed.

Many people feel frustrated by this and fall into the “please stop talking about this at work” crowd. But does anyone HAVE to stop talking about it at work?

What Can Be Done About Employees Discussing Politics at Work?

Employees do not have free speech rights in the workplace. The first amendment only applies to the government and not to private employers. This means that companies can have policies in place that restrict employees from soliciting employees to vote for a particular candidate and can even discipline employees in some situations.

However, the National Labor Relations Act allows employees to work together to improve their wages and working conditions. What this means in practice is that an employee can discuss issues that may be related to improving their working conditions. Thus, employees have the right to ask fellow employees to support a candidate because they will raise the minimum wage, change some standards related to OSHA, or improve their workplace in some other way.

So, what can employers do when an employee wants to talk about politics at work. There are a number of things that you should consider.

Let’s look at some situations:

The Campaign Desk/Cubicle

What should you do if an employee has turned their desk into a campaign advertisement for a particular candidate? Again, your employee has the right to engage in concerted protected activity, which means that some banners may be permitted in the workplace. What you are allowed to do would primarily depend on your office’s policy. Certain types of objects may be protected under the law (like some religious objects), but generally political items would not fall into this category. Some may be protected if they are suggesting that an employee vote for a candidate because they will improve wages or working conditions. Regardless, posting political posters in an office is not something that an employee should do because it creates unneeded tension in the office.

The Office Canvasser

A non-solicitation policy will generally prohibit employees from soliciting employees during working time and in working areas. This means that an employee cannot go from desk to desk requesting that the employee vote for a particular candidate. If your company has a non-solicitation policy, then you are able to restrict employees from soliciting others while they are working. Employees can still solicit employees when they are on break, during lunch, or before or after work. Nevertheless, a non-solicitation policy is something that all companies should have.

The After Work Social Media Poster

A company may be able to fire or discipline an employee if they post on social media about their political activities. Don’t forget about the woman that was fired for flipping off Trump’s motorcade. She was fired for having obscene things on her social media, which was against company policy. It did not help that she worked for a federal contractor. While companies can generally fire employees for any reason, as long as it is not an unlawful reason, almost every company will not fire employees for political postings on social media. If they did, then a lot of people would lose their jobs each election year.

Employers Can Ask Employees to Support a Particular Candidate

Generally, a company can encourage their employees to vote in a certain way. In 2012, one CEO emailed the 7,000 employees in his company to tell them that if Obama was elected he would probably have to let people go because of Obama’s tax proposals. He stated that rather than raising taxes, the government should lower the tax rate, which would “let me spend it on growing the company, hire more employees, and generate substantial economic growth.” Companies can and do encourage their employees to vote a certain way, which is not likely to stop as our two major political parties continue to grow more polarized each year.

Can an Employer Fire Someone Because They Support a Particular Candidate?

There are some states that prohibit employers from discriminating against an employee’s political beliefs, but not all of them do. Some states also offer protection to employees who engage in legal off-duty conduct. While this usually means that employees cannot be fired for smoking or drinking alcohol, it may also apply to supporting a particular candidate, going to campaign rallies, and engaging in other activities.

Even though many states do not offer any kind of protection to employees, most employers do not want to fire an employee unless there is a good reason to do so. Remember, hiring is expensive and time consuming. Employers do not want to do it more than they have to.

Conclusion

Fortunately for all of us, there are only a few days left until the election is behind us, which will allow all of us to remember what commercials used to play before we were inundated with political campaign ads: fast food and auto insurance commercials.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Three Weird Reasons that You Cannot Fire Employees

Published by Brett Holubeck on October 11, 2018

We’ve all heard of weird laws. For example, in California it is illegal to eat a frog that dies during a frog jumping contest. What many people do not realize is that there are a number of strange and non-intuitive laws that govern the workplace. Many companies (unknowingly) break these laws all the time. Today we are going to review 3 of the strangest laws that many employers (and employees) are not aware of.

1. Employees Can Curse Out Their Boss on Facebook Without Being Fired (Maybe)

Before you send out that Tweet or post that Facebook message about work you have to read this… While I don’t recommend it, an employee may be able to curse out their boss on Facebook (or on other social media platforms) without getting fired. Yes, it is true. However, your mileage may vary.

The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to fire someone because they engage in protected concerted activity. Normally, this means employees cannot be fired for attempting to unionize a company by passing out leaflets, soliciting their coworkers, complaining about working conditions, and many other activities.

However, the NLRA also protects employees that use curse words like this phrase below in some instances (I altered the curse words):

Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The National Labor Relations Board found that this language was protected and Pier Sixty, the company, had violated the NLRA by terminating the employee for this language. There is a test to determine whether this language is protected. In this case, the two most important factors were that the company tolerated similar obscenities in the workplace and the statement was about workplace concerns and occurred in the context of alleged hostile actions by the company in the context of a union organizing campaign. While it was unlawful to fire an employee in this case for cursing out their boss, in many instances employers can lawfully terminate an employee that curse out a supervisor.

2. Companies Cannot Fire Employees for Sharing Their Salaries or Wages

Many workplaces still have rules that prohibit employees from discussing their wages with other employees. Supervisors may tell an employee that just got a raise to keep that information to themselves and not to share it with other employees because the supervisor does not want other employees to be upset that they did not get a raise. Well, that is clearly illegal.

The NLRA allows employees to discuss their salaries and prohibits employers from having policies that forbid employees from discussing their pay. This standard was recently confirmed in the Boeing decision (decided in December 2017), which established a new standard for evaluating whether workplace rules violate the NLRA. Workplace rules that prohibit salary discussions were specifically mentioned as an example of a clearly illegal rule.

Many businesses have legitimate reasons to pay employees differently: some employees have more experience, others work longer hours, some have the same job title but different responsibilities, and some may be more productive or just better employees (e.g. the top salesperson is usually easily identifiable and typically makes more than the worst salesperson). No company wants to explain to employees why they are paid differently. These conversations almost always create a sense of unfairness and lower morale. Companies also want to avoid defending their pay structure when an employee claims that the company is discriminating against people of a certain race or sex. It causes bad publicity even if the company can prove that it has legitimate and justifiable reasons for the wage differences.

3. Employees that Engage in Certain Protests or Strikes Are Protected from Termination

Employers cannot fire or otherwise retaliate against an employee for protesting or striking. One interesting case involves the “Day Without Immigrants” protests from last year. The protests involved immigrants boycotting businesses and striking to highlight how immigrants impact US businesses. It was also an effort to show the Trump administration the importance of the immigrant community as he began to take a tough stance on immigration. The case was settled, but not before the National Labor Relations Board (NLRB) Division of Advice issued an advice memo on the issue.

The NLRB found that EZ Industrial Solutions violated the National Labor Relations Act by threatening to suspend and then firing 18 employees because they participated in the “Day Without Immigrants” Protest. EZ Industrial Solutions terminated all 18 employees the day after the protest for not coming to work, insubordination (they had been told that they were needed at work), and sabotage.

The NLRB concluded that the employees’ participation in a Day Without Immigrants “was for their mutual aid or protection and constituted a protected strike.” The National Labor Relations Act protects employees that engage in activities to ‘“improve their lot as employees through channels outside the immediate employee-employer relationship” in addition to activities ‘“in support of employees of employers other than their own.”’ The protest in this case was protected because the employees were acting to protect other employees especially those that may have been undocumented.

The case provides some valuable insights to employers. Employers need to be aware that non-unionized employees can also strike or engage in work stoppages to protest their working conditions and pressure their employer to correct the object of their complaint.

Conclusion

These are just some of the weird and non-intuitive rules that employers must follow. For many companies, it is not the expected workplace obstacles that derail a company, but the unexpected challenges. The worst thing that an employer does in this kind of situation is to guess or “follow their gut.” Companies that do often find themselves in litigation.

The information provided is my own and does not reflect the opinion of my firm or anyone else.