The National Labor Relations Board has issued the first part of its planned series of revisions to labor union election procedures. The revisions arrive five years after the Obama-era Board’s controversial 2014 changes that created the so-called “ambush election” procedures.
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On June 5, 2019, Nevada Governor Steve Sisolak signed into law Assembly Bill No. 132, which is the first state law to curb pre-employment marijuana drug tests. The new law has two primary effects: 1) it makes it unlawful for Nevada employers to fail or refuse to hire a prospective employee because the applicant submitted to a screening test and the results of the test indicate the presence of marijuana; and 2) it provides employees who test positive for marijuana with the right to, at their own expense, rebut the original test results by submitting an additional screening test within the first 30 days of employment.
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In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims. The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.
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Last month, the National Labor Relations Board held that employers do not have to allow non-employees to use their cafeterias or similar public spaces for promotional or organizational activities. In so holding, the Board overruled decades-old precedent.
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Members of the U.S. Senate Finance Committee recently announced a bipartisan committee of senators to consider federal paid family leave policy.
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To all employers in Washington DC who employ tipped workers, heed this warning: as of July 1, 2019, you must comply with new notice, reporting, and training requirements, as set forth in the Tipped Wage Workers Fairness Amendment Act of 2018.
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Many workplace policies and employee handbooks contain restrictions on employees speaking to the media. Through these policies, employers often seek to limit what organizational information is disclosed to third parties, and to exercise at least some control over statements that may be attributed to the company. Such restrictions, though, may be found to violate employees’ rights under the National Labor Relations Act due to overbreadth when not drafted carefully.
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The Department of Labor earlier this month proposed employer-friendly amendments to its rules regarding joint employer liability under the Fair Labor Standards Act. In its Notice of Proposed Rulemaking, the DOL proposed the adoption of a four-factor test to assess joint employer status under the FLSA. The test would consider an employer’s actual exercise of significant control over the terms and conditions of an employee’s work, rather than attenuated control or contractually reserved control that goes unexercised.
On March 12, 2019, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit declined to enforce a bargaining order against the University of Southern California, finding that part of the order “runs afoul” with Supreme Court precedent, NLRB v. Yeshiva Univ., 444 U.S. 672 (1980).
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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.
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