As anticipated and previously reported, the Republican-controlled Board is overturning Obama-era rulings. For example, in a recent decision, SuperShuttle Inc. DFW, Inc. (16-RC-010963), the National Labor Relations Board affirmed the Board’s adherence to the traditional common-law agency test. This decision overrules the NLRB’s 2014 Decision, FedEx Home Delivery, 361 NLRB No. 65, which had modified the NLRB’s long-standing test for independent contractor status.
The presence of alcohol in offices has ebbed and flowed over time and largely depended on the type of business, from drink carts in advertising agencies à la Mad Men to keg refrigerators at startups. The once popular office perk may or may not be waning, but the number of companies addressing the issue and the attention those decisions are generating is certainly increasing. Companies across the country are evaluating their alcohol policies, or lack thereof, particularly in light of #MeToo developments and are considering the following: Continue Reading Companies Are Rethinking their Approach To Alcohol in the Workplace
The opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use. Recent court filings and settlements by the Equal Employment Opportunity Commission illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.
Many in the labor community are familiar with the Machinists Union’s long running effort to unionize Boeing’s South Carolina-based 787 Dreamliner manufacturing facility. After failing in two previous attempts to organize the entire facility, the Union recently won a bid to organize a “micro-unit” limited to a group of flight line technicians and inspectors. The Regional Director’s decision to approve the Union’s proposed bargaining unit took most labor practitioners by surprise, given the NLRB’s recent decision in PCC Structurals overturning the controversial Specialty Healthcare standard that facilitated the formation of micro-units. In PCC Structurals, the Board rejected the Specialty Healthcare test and reaffirmed that in reviewing representation petitions, the Board cannot limit its analysis to the interests of employees in the proposed bargaining group and instead must make a “meaningful” evaluation of the interests of those excluded from the group.
Under this standard, the micro-unit proposed by the Union should have been rejected. Inexplicably, the Regional Director reviewing the petition approved the unit, paying little heed to the guidance announced in PCC Structurals. Boeing has petitioned the full NLRB to review and overturn the Regional Director’s decision.
Hunton Andrews Kurth filed an amicus brief supporting Boeing’s appeal on behalf of a group including the Coalition for a Democratic Workplace, Independent Electrical Contractors, National Association of Wholesaler-Distributors, National Federation of Independent Business, National Retail Federation, Restaurant Law Center and Retail Industry Leaders Association. In the brief, the amici urge the Board to accept Boeing’s petition for review in order to provide guidance to the regulated community and the NLRB Regions charged with processing representation petitions on how to properly apply the standard announced in PCC Structurals. A copy of the brief can be found here.
As we reported last December, the NLRB, in The Boeing Company, 365 NLRB No. 154 (2017), reversed its workplace rule standard under Lutheran Heritage. Specifically, instead of assessing whether an employee could “reasonably construe” a workplace rule as barring the exercise of rights under the NLRA, the new test will evaluate the nature and extent of the potential impact on NLRA rights and the legitimate justifications associated with the rule. The results of the new balancing test will place the rule in one of three categories: Category 1 (lawful work rules), Category 2 (work rules that warrant individualized scrutiny in each case), or Category 3 (unlawful work rules).
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. Below is a summary of key elements for private employers: Continue Reading #metoo In New York: New Sexual Harassment Laws in New York State and New York City
New Jersey’s Paid Sick Leave Act will go into effect on October 29, 2018, making it the tenth state plus Washington DC and dozens of localities to mandate paid sick leave.
New Jersey’s Act requires employers of all sizes to provide employees with up to 40 hours of paid leave per 12-month period. Key aspects of the new law include: Continue Reading New Jersey Requires Employers to Provide Paid Sick Leave
Recently the National Labor Relations Board invited interested parties and amici to submit briefs in Velox Express, Inc. (15-CA-184006) to address under what circumstances, if any, the Board should deem an employer’s misclassifying statutory employees as independent contractors constitutes a violation of Section 8(a)(1) of the National Labor Relations Act (“the Act”). Briefs from parties and interested amici must be submitted on or before April 16, 2018.
We previously informed you of the National Labor Relations Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in which the Board overruled the controversial joint employer test which it had announced in Browning-Ferris Industries, 362 NLRB No. 186 (2015).
On February 26, 2018, the Board entered an order vacating the Hy-Brand decision, 366 NLRB No. 26 (2018). It did so in light of a determination by the Board’s Designated Agency Ethics Official, that Board Member William Emanuel “is, and should have been, disqualified from participating in the [Hy-Brand] proceeding.” Accordingly, Browning-Ferris is again the controlling Board law on joint employer status.
It remains to be seen when the Board might re-visit Browning-Ferris through another decision. In the meantime, employers who face joint employer concerns should evaluate their current practices in light of this development.
Georgia’s “kin care law” went into effect on July 1, 2017. Under this new law, Georgia employers with 25+ employees must permit employees who work 30+ hours per week to use up to five hours of their earned sick leave to take care of immediate family members. “Immediate family member” is defined as the employee’s child, spouse, grandchild, grandparent, parent, or dependents listed on the employee’s most recent tax return.