Legislative responses to the #metoo movement continue to develop across the country.  Joining this movement, New York State and New York City recently have passed some of the strongest anti-harassment laws on the books. 
Continue Reading #metoo In New York: New Sexual Harassment Laws in New York State and New York City

Driven by the wave of publicity surrounding sexual harassment allegations against prominent artists, executives, news anchors, filmmakers and legislators, and the ensuing #MeToo movement, legislators in California and several other states recently have introduced bills designed to prevent such harassment.  We summarize four bills introduced in the California Senate and Assembly in January 2018. 
Continue Reading Sexual Harassment Update California – Proposed Legislation

Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), is one of several decisions issued this month by the National Labor Relations Board’s (the “Board”) new Republican majority which reverse Obama-era precedent. Raytheon overrules the Board’s decision E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), which limited the changes employers can make unilaterally in a union environment.
Continue Reading NLRB Reverses Prior Precedent – Expanding Changes Employers Can Make Unilaterally In Union Environment

California’s Fair Employment and Housing Act (“FEHA”) not only prohibits discrimination, harassment and retaliation, but goes a step farther than similar state laws in its explicit requirement that employers take reasonable steps to prevent and correct such conduct.
Continue Reading California Issues Guidelines for Preventing and Correcting Workplace Harassment

The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”).  In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review.  This conclusion was fairly uncontroversial.  Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard.  The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.

Continue Reading U.S. Supreme Court Holds That District Courts’ Decisions to Enforce or Quash EEOC Subpoenas Are to Be Reviewed Under Deferential Abuse of Discretion Standard

On February 27, 2017, the United States Circuit Court for the District of Columbia heard oral argument in the case 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. This appeal challenges the National Labor Relations Board’s (NLRB) new and imprecise standard for determining whether companies are “joint employers” for purposes of the National Labor Relations Act. The new standard, first issued in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), abandons consideration of a company’s direct and immediate control over employees in favor of a fact-specific approach that focuses more on “reserved” or “indirect” control.
Continue Reading District of Columbia Circuit Hears Oral Argument on Browning-Ferris “Joint Employer” Standard

In a brief filed on September 7, 2016, the National Labor Relations 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.
Continue Reading Briefing Continues in Browning-Ferris Appeal

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

A concerned business community has closely followed the NLRB’s shifting views on the concept of “joint employers” – separate companies that are deemed to be so interconnected that they should be treated as one for purposes of labor relations activity and unfair labor practice liability. In August of last year, the NLRB decision in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), put into place a broad new test that dramatically expands the definition of “joint employer.” Now, an entity will be found to be a joint employer if it exercises only indirect control over the employment terms and conditions of another company’s employees. Indeed, joint employer status can be established if a company simply possesses, but never exercises, the ability to control such terms.
Continue Reading Business Groups and Others Support Browning-Ferris’s Appeal of the NLRB’s New “Joint Employer” Standard