Briefing Continues in Browning-Ferris Appeal

In a brief filed on September 7, 2016 (“NLRB Brief”), the National Labor Relations Board (“NLRB” or “the Board”) urged the United States Court of Appeals for the District of Columbia Circuit to uphold its new “joint employer” standard, set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015). Through this new standard, the Board now seeks to impose collective bargaining and other NLRA obligations on companies that may indirectly control certain conditions of employment, or that merely reserve (but do not exercise) such control.  Casting aside the more precise “direct and immediate control” standard it explicitly adopted in 1984, the Board in Browning-Ferris opted instead to analyze joint control issues on a fact-specific, case-by-case basis, with a greater focus on reserved and indirect control.  The case on appeal is entitled Browning-Ferris Industries of California, Inc., d/b/a/ Browning-Ferris Newby Island Recyclery v. National Labor Relations Board,  Nos. 16-1028, 16-1063 and 16-1064.

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Register Now For The OFCCP Institute’s Compliance Conference in Chicago

The OFCCP’s increasingly aggressive enforcement scheme continues to present challenges for federal contractors and subcontractors.   Please join The OFCCP Institute for a comprehensive two-day seminar featuring several distinguished speakers, including Chai Feldblum of the EEOC, Consuelo Pinto of the DOL’s Division of Civil Rights, and OFCCP and employment attorney, Christy Kiely.

Date: Wed, November 9th – Thurs, November 10th, 2016

Early Bird Discount ends September 29th

Register

Seattle Passes “Secure Scheduling” Law for Hourly Retail and Food Service Employees

On Monday, September 19, 2016, the Seattle City Council approved an ordinance (C.B. 118765) designed to bring more stability to the schedules of retail and food service industry workers, who often experience last-minute scheduling changes, loss of paid hours, and back-to-back shifts. The law, which was developed during a series of meetings between the City, business owners and worker advocates, will be codified in Chapter 14.22 of the Seattle Municipal Code and will take effect on July 1, 2017.

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Federal Contractor Alert: Government Reporting Under The New “Blacklisting” Order

Join us on Wednesday, October 5, 2016, from 1:00 p.m. – 2:30 p.m. ET, for a practical breakdown of President Obama’s “Fair Pay and Safe Workplaces” Executive Order (13673), issued in 2014.

President Obama’s “Fair Pay and Safe Workplaces” Executive Order (13673), issued in 2014, at last is going into effect. The Order requires federal contractors and subcontractors to report a three-year history of violations of fourteen different labor and employment laws, to the government as part of the procurement process. The government can deny a federal contract to a contractor with a sufficiently negative compliance record.

The first wave of reporting, for prime contractors, is due on October 25, 2016.

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D.C. Circuit Affirms Board Ruling On Overbroad Confidentiality Policy

Employers should be aware of a recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit that overly broad confidentiality and nondisparagement policies violate the National Labor Relations Act (“NLRA”).  The case, Quicken Loans v. NLRB, 2016 U.S. App. LEXIS 13778 (D.C. Cir.), involved an employment policy which prohibited employees from using or disclosing a broad range of personnel information without Quicken’s prior written consent or to criticize publicly the company and its management. The National Labor Relations Board (“NLRB” or “Board”) determined that those rules ran afoul of Section 7 of the NLRA because they “unreasonably burden the employees’ ability to discuss legitimate employment matters, to protest employer practices, and to organize.” Quicken then appealed the NLRB’s decision to the D.C. Circuit Court of Appeals.

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Second Circuit Sinks Claws Into Employers With Broad Interpretation Of Cat’s Paw Theory

On August 29, 2016, the U.S. Court of Appeals for the Second Circuit issued Vasquez v. Empress Ambulance Service, Inc., — F.3d —, No. 15-3239-CV, 2016 WL 4501673 (2d Cir. Aug. 29, 2016), holding that an employer may be held liable for a low-level employee’s animus under the cat’s paw theory of liability if the employer’s own negligence allows that animus to result in adverse employment action against another employee.

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Employer Prohibited from Terminating Employee for Storing Gun in Truck in Mississippi – Multiple States Potentially Impacted

In a decision that could trigger similar action in multiple states, the Fifth Circuit recently decided that an employee could bring a wrongful-termination claim in Mississippi after being terminated for having a gun in his truck, which was parked on company property.   Following the Mississippi Supreme Court’s decision on referral, the Fifth Circuit held that a Mississippi statute—which prohibits employers from establishing, maintaining, or enforcing policies that prohibit an employees from storing a firearm in a vehicle on company property and from taking action against an employee who violates that policy—creates an exception to the state’s employment-at-will doctrine.

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Contractors Beware: “Blacklisting” Rule Finalized

Today, on August 25, 2016, the Department of Labor issued final Guidance implementing Executive Order 13673, Fair Pay and Safe Workplaces, bleakly referred to by the contractor community as the “blacklisting” order.  The same day, a Final Rule  and Guidance was added to the Federal Acquisition Regulation (FAR) to implement that Executive Order, by the Department of Defense (DoD), General Services Administration (GSA) and National Aeronautics and Space Administration (NASA).

The “blacklisting” order places a new focus on labor and employment issues during the federal procurement process. Covered federal contractors and subcontractors must now disclose to the government previous violations of fourteen different federal labor and employment laws, plus equivalent state counterparts.  Pre-award disclosures must be made before a contract can be awarded to ensure the company is a “responsible” labor source.  Updated reports then are required every six months post-award.  The rule also imposes limits on the arbitration of certain employment claims, and requires specified paycheck disclosures and transparency.

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Federal Government Seeks to Raise Awareness Regarding Religious Discrimination in the Workplace

The issue of religious background has generated substantial discussion during the current election cycle. Recently, the federal government highlighted the issue of religious discrimination and accommodation in the workplace.

On July 22, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the release of a one-page fact sheet specifically designed to educate young workers of their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination. The fact sheet stresses that employers may not discriminate against an employee on the basis of religion, and notes that employees have a right to ask that certain workplace accommodations be made to respect their religious preferences. Also outlined by the sheet are various examples of proper and improper employment practices under federal law. The fact sheet encourages employees to report suspected religious-based discrimination.

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Eleventh Circuit: Arbitration Agreement Enforceable Despite Terms that Violate USERRA

In Bodine v. Cook’s Pest Control Inc., No. 15-13233, 2016 WL 4056031 (11th Cir. July 29, 2016), the Eleventh Circuit held that a forced-arbitration agreement in an employment contract is enforceable, despite the fact that certain provisions of the arbitration agreement violated the Uniform Services Employment and Reemployment Rights Act (“USERRA”).

Rodney Bodine, a member of the U.S. Army Reserve, was part of the sales force at Cook’s Pest Control, Inc. (“Cook’s”) in Alabama. His employment contract with Cook’s contained an arbitration clause, which included provisions that 1) permitted the arbitrator to re-apportion costs and attorneys’ fees, and 2) set the statute of limitations for filing a claim under the agreement at six months. After being terminated, Mr. Bodine brought suit against Cook’s under the USERRA, 38 U.S.C. § 4301, and state law, alleging, inter alia, discrimination based on military service.

USERRA provides statutory protection to members of the military against discrimination by employers because of their military service. 38 U.S.C. § 4301(a)(3). It also contains a non-waiver provision, which provides that the chapter “supersedes any” contractual agreements that “reduces, limits, or eliminates in any manner any right of benefit provided by t[he] chapter.” § 4302(b). USERRA also states that there is no statute of limitations for bringing a claim under the Act, § 4327(b), and that no court costs or fees may be charged to a USERRA plaintiff, § 4323(h)(1). Mr. Bodine alleged that, because the statute of limitations and fee provision of the arbitration agreement conflicted with USERRA, the entire arbitration provision was void under USERRA’s non-waiver provision.

Cook’s moved to compel arbitration. Although it conceded that the two provisions Mr. Bodine complained about did indeed violated USERRA, Cook’s argued that the court could use the employment contract’s severability clause to excise the two invalid provisions while retaining and enforcing the remainder of the arbitration agreement, pursuant to the Federal Arbitration Act’s (“FAA”) “liberal policy favoring arbitration agreements.” The district court agreed and, under Alabama’s severability law, it struck the statute of limitations and fee provisions from the arbitration agreement. The court dismissed the suit without prejudice and ordered Mr. Bodine to submit his claims to arbitration.

Over a dissent by Judge Martin, a panel of the Eleventh Circuit affirmed the district court’s order and concluded that “USERRA’s non-waiver provision should not be read to automatically invalidate an entire agreement with USERRA-offending terms. Instead, the plain language of [USERRA] contemplates modification of an agreement by replacing USERRA-offending terms with those set forth by USERRA.” (Emphasis added.) The Court held that the “USERRA’s non-waiver provision does not conflict with the FAA: both statutes provide a mechanism for striking from an arbitration agreement a term in conflict with USERRA.”

Despite the Court’s holding, employers are wise to consider USERRA’s provisions when drafting employment contracts and arbitration agreements. In addition to the statute of limitations and fee provisions at issue in Bodine, USERRA contains provisions pertaining to jurisdiction, § 4323(b), and venue, § 4323(c). The Act also requires employers to “provide to persons entitled to rights and benefits under this chapter a notice of the rights, benefits, and obligations of such persons and such employers under this chapter.” § 4334(a).

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