D.C. Circuit Releases Employer From NLRB Jail


We have frequently commented on the National Labor Relations Board’s (NLRB) expansion and creation of sweeping protections to employees engaging in union organizing and other activities protected under the National Labor Relations Act (Act). As but one example, we recently commented on the Board’s concerning decision to consider offensive racial comments protected concerted activity under the Act. The Board – in yet another split decision by Board members with different political allegiances – had previously found employees could not be disciplined for suggesting to their employer’s customers that they are incarcerated inmates when approaching customer homes. In a victory for common sense, a federal appeals court in Washington, D.C., refused to enforce the Board’s conclusion. Continue reading this entry

25 Years of the ADA: Five Tips for ADA Compliance


Last week – July 26, 2015, to be precise – marked the 25th anniversary of the passage of the Americans with Disabilities Act. The anniversary kicked off celebrations of, according to the U.S. Department of Justice, the nation’s commitment “to eliminating discrimination against people with disabilities.” And while even this employer advocate lauds the purposes behind the ADA and the ways it has improved the lives of individuals with disabilities, it is also hard to argue with the argument that ADA has had its fair share of hiccups and generated lawsuits many believe constitute abuse of the ADA for personal gain, particularly in California (including by one individual who does not even reside in California, but reportedly makes an annual trip to the Golden State for the purpose of filing shakedown ADA lawsuits). Continue reading this entry

It’s Not Just the DOL That Thinks You May Have More Employees


Just last week, the DOL provided guidance about people treated as independent contractors, but who may really be your employees. That is just part of the trend. Another way you may have “extra” employees is through joint employment, most commonly through use of a staffing agency.

A recent case from South Carolina illustrates the point. The worker was hired by a staffing company and assigned to work for the company against which the worker brought the lawsuit. She complained about sexual remarks from one of the company supervisors, and the worker’s assignment with the company was terminated a few days later. The worker then sued both the staffing agency and the company. There was no dispute that the staffing agency had employed her, but the company escaped liability, or so it thought, by claiming it was not the worker’s employer. The appeals court said the company exercised sufficient control over the worker to also be considered her employer and therefore told the trial court it had to consider her claims on the merits. Continue reading this entry

Someone’s Knocking: If It’s the Union, Don’t Let Them in


The National Labor Relations Act protects employee solicitation of other employees and distribution of literature to form or join a union or to engage in other “concerted” activities. However, employers have the ability to regulate such solicitation and distribution in the workplace under certain circumstances. In general, employers can permissibly have policies that prohibit the following: Continue reading this entry

DHS Proposes Changes to E-Verify Program: I-9 Reverifications and FNC Formal Reviews


As employers continue to enroll in the E-Verify program at a high rate, the United States Department of Homeland Security (DHS) is considering various changes to this key program. Some of these changes place additional obligations on the employer. E-Verify is DHS’s internet-based system through which employers may electronically verify the employment eligibility of newly hired employees. Employers do so by opening an E-Verify case and entering the information contained on the Form I-9, Employment Eligibility Verification. Continue reading this entry