It’s now officially public: under the National Labor Relations Board’s (NLRB)  General Counsel Peter B. Robb, unions may face greater scrutiny and a higher burden in defending against claims that they violated the duty of fair representation.  Under the National Labor Relations Act, unions owe this duty to its members and can be liable under Section 8(b)(1)(A) if they represent them arbitrarily, discriminatorily, or in bad faith. Continue Reading New General Counsel Memorandum Reiterates The NLRB’s Policy of Increased Scrutiny of Unions

The National Labor Relations Board (“Board”) has taken the first step to potentially reshape labor law since the May 21, 2018 Epic Systems case, in which the Supreme Court held that class waivers in arbitration agreements do not violate the National Labor Relations Act (“Act”).

On August 15, 2018, the Board vacated its decision and order in Cordúa Restaurants, Inc., 366 NLRB No. 72 (April 26, 2018), where a three-member panel of the Board held that an employee engaged in concerted, protected activity by filing a class action wage lawsuit against his employer.

The Board’s recent vacating of this order is noteworthy for two reasons.

Continue Reading NLRB Vacates Order in Cordúa Restaurants, Potentially Paving Way for Reshaped Labor Law Post-Epic Systems

In a major win for employers, the U.S. Supreme Court held that arbitration agreements with class action waivers do not violate the National Labor Relations Act (“NLRA”).  The Court’s narrow 5-4 decision paves the way for employers to include such waivers in arbitration agreements to avoid class and collective actions.

Continue Reading SCOTUS Holds Class Action Waivers Do Not Violate the NLRA

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

On February 5, 2018, the American Bar Association (ABA) adopted Resolution 302, which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.”

Resolution 302 was unanimously passed by voice vote of the ABA’s House of Delegates, the 601-member governing body of the country’s largest legal association, after further edits by employment lawyer Mark Schickman to strengthen its language.

In the #MeToo era, Resolution 302 is a reminder to all employers of harassment policy best practices, and should be of particular interest to employers in the legal industry. Continue Reading ABA Resolution 302: What the American Bar Association’s Position on Harassment Means to Employers

Say an employee slips $20 from the register and even admits to it when you show the camera footage.  Or, more innocently, say an employee is overpaid $20 entirely by accident.  If the employee refuses to give it back, should you deduct the $20 from the employee’s paycheck?

It depends.  Here are four questions to ask yourself.  Continue Reading Employee Theft: Can Employers Deduct Suspected or Known Theft from an Employee’s Paycheck?

Under a new DOL pilot program, employers can self-report wage violations and potentially avoid costly litigation.

Last week, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) launched a six-month pilot program to resolve FLSA violations.  Under the Payroll Audit Independent Determination (PAID) program, employers may self-report potential overtime or minimum wage violations to the WHD, which will then resolve the matter by supervising payments to employees if the employees accept the settlement.  Importantly, the WHD will not impose penalties or liquidated damages on employers that participate in the program and proactively work with the WHD to resolve the compensation errors.  Further, if an employee accepts a supervised settlement through PAID, s/he waives his or her right to file an action to recover damages and fees for the violations and time period identified by the employer.  To participate in the PAID program, an employer must identify: (1) the wage violation(s); (2) the impacted employee(s); (3) the time period(s) in which the violation(s) occurred; and (4) the amount of back wages owed to the impacted employee(s).  However, employers may not participate if they are in litigation or under investigation by the WHD for the practices at issue, or to repeatedly resolve the same potential violations.

Continue Reading DOL Launches Pilot Program for Self-Reporting FLSA Violations

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.

Continue Reading Georgia Kin Care Law: Low Burden but a Sign of Laws to Come?

Effective March 17, 2017, the District of Columbia will join a dozen other jurisdictions across the country that prohibit an employer’s use of “credit information” in employment decisions.  The new law, D.C. Act 21-673, amends the District of Columbia’s existing human rights law by adding credit information as a prohibited basis for discrimination for any employment decision (not just hiring), and applies to employers of any size.  See D.C. Code § 2-1402.11(a)(1) and (a)(1)(4)(D), as amended.

Continue Reading D.C. to Restrict Use of Credit Information in Employment Decisions