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Update: On March 8, 2024, the Eastern District of Texas granted summary judgment in favor of the Chamber of Commerce and struck down the NLRB’s new final joint employer rule. The opinion conducts a thorough review of the history of the joint employer standard and ultimately concludes that the Final Rule is contrary to the common law. The opinion critiques the Board’s rulemaking stating they failed to adequately address the disruptive effects of the new rule, resolve ambiguities, or explain how it will not cause piece-meal bargaining.  The opinion then leaves the previous rule from 2020 in place which requires an entity to “possess and exercise such substantial direct and immediate control over one or more essential terms or conditions” of employment to be considered an employer. The NLRB is likely to appeal and we will continue to monitor further developments. Our previous post discusses the challenge and legal proceedings before the Eastern District of Texas.

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Continue Reading An (Un)Predictable Future – 2024 Employment Issues to Watch
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The NRLB has hit another roadblock in its implementation of a new final joint employer rule (the “Final Rule”) as a Texas federal judge delayed its implementation until March 11. The Final Rule, which was supposed to take effect on February 26, would have made organizations liable for violations of the NLRA if they had direct or indirect control over the terms and conditions of employment of another firm’s employees. This change increases the potential of liability from franchising or contracting with third parties. To see more information on the implications of the Final Rule, see our previous articles here and here.

Continue Reading NLRB’s Final Joint Employer Rule Stayed Amid Legal Challenges
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Last week, New York’s Governor signed a bill into law that effectively prohibits employers from accessing employees’ or job applicants’ personal social media accounts. The law goes into effect on March 12, 2024.

Continue Reading New Restrictions on New York Employers’ Access to Employee and Applicant Social Media Accounts
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On February 8, 2024, the U.S. Supreme Court issued a unanimous opinion holding that a whistleblower with a retaliation claim under the Sarbanes-Oxley Act of 2002 (“SOX”) does not need to establish that their employer acted with “retaliatory intent” to succeed on their claim. An employee must merely show that their protected whistleblowing activity was a “contributing factor” in an adverse employment action against them by their employer. Murray v. UBS Securities, LLC, 144 S.Ct. 445 (2024). An employer’s retaliatory intent or lack of animosity is “irrelevant.”  Id. at 446.

Continue Reading SCOTUS Holding Reinforces Employee-Friendly SOX Whistleblower Burden
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On February 15, 2024, California lawmakers introduced the bill AB 2930.  AB 2930 seeks to regulate use of artificial intelligence (“AI”) in various industries to combat “algorithmic discrimination.”  The proposed bill defines “algorithmic discrimination” as a “condition in which an automated decision tool contributes to unjustified differential treatment or impacts disfavoring people” based on various protected characteristics including actual or perceived race, color, ethnicity, sex, national origin, disability, and veteran status. 

Continue Reading California Seeks to Regulate Employer Use of AI
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Continue Reading Webinar Invite: Top Tips for Employers – Leap into Labor Law
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The legal path between employee arbitration agreements under the Federal Arbitration Act (“FAA”) and representative claims under the California Private Attorney General Act (“PAGA”) has been anything but smooth. A new (albeit unpublished and uncitable) case, Piran v. Yamaha Motor Corp., et al., No. G062198, 2024 WL 484845 (Cal. Ct. App. Feb. 8, 2024)(unpub.) (“Yamaha”), helps to illustrate the challenges and unanswered questions lingering in the wake of this rapidly-developing area of law.

Continue Reading In High Stakes Battle Between Arbitration and PAGA, Wins, Losses, and Questions
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A few months ago, we wrote about the National Labor Relations Board (“NLRB” or “Board”) publishing its widely anticipated final joint-employer rule (the “Final Rule”).  The Final Rule overrules the NLRB’s 2020 joint-employer rule and broadly expands the definition of joint-employer under the National Labor Relations Act (“NLRA” or “Act”). See Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (October 27, 2023) (to be codified at 29 C.F.R. pt. 103).   

Continue Reading NLRB’s Final Joint Employer Rule Takes Effect This Month
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The National Labor Relations Act (“Act”) empowers the National Labor Relations Board (“Board”) to “take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.” 29 U.S.C. § 160(c). For much of the Board’s history, that has generally resulted in Board Orders that involve some combination of notice posting, backpay, and reinstatement.

Continue Reading Fifth Circuit is Set to Weigh in on NLRB’s Enhanced Financial Remedies