The NLRB has decided to enter the fray in a big way as to the enforceability of arbitration agreements that do not allow for arbitration of class claims. On January 3, 2012, the NLRB ruled in D.R. Horton, Inc. and Michael Cuda, that it constitutes an unfair labor practice for an employer to require, as a condition of employment, that employees arbitrate claims as individuals rather than a class, unless a union has agreed to such arbitration provision. The NLRB found that such an agreement interferes with employees’ right to engage in protected concerted activity. This decision is a rebuke by the NLRB of two recent United States Supreme Court decisions: 14 Penn Plaza LLC v. Pyett and AT&T Mobility v. Concepcion. Continue reading this entry
Category Archives: New and Recent Legislation
Make Sure You Increase Minimum Wage, Where Needed
Posted in New and Recent LegislationHappy New Year! Many state laws and local ordinances provided for an increase in minimum wage effective January 1, 2012. Make sure you are complying with these increases for any employees who work for you in the following states or locales:Continue reading this entry
The OFCCP Is at It Again — Revision to Compliance Requirements Is a “Game Changer”
Posted in New and Recent LegislationUnder the Obama administration, many Department of Labor agencies have stepped up their non-discrimination enforcement activities. The Office of Federal Contract Compliance Programs (OFCCP) has stepped up enforcement even more than most. The latest OFCCP effort is a revision to the regulations on affirmative action for employers as it relates to persons with disabilities. On November 30, 2011, the Office of Management and Budget (OMB) approved a Notice of Proposed Rulemaking (NPRM) that outlined the OFCCP’s revision, which OFCCP Director – Patricia Shiu suggested was going to be a “game changer.” On December 9, 2011, the OFCCP published its proposed revisions in the Federal Register.Continue reading this entry
California Is Becoming Even More Employee-Friendly
Posted in New and Recent LegislationSince becoming governor of California in January 2011, Jerry Brown has signed a number of significant employee-friendly laws, placing an ever-growing burden on California employers. This article will briefly summarize many of the laws.
Misclassification of Independent Contractors (Effective January 1, 2012)
This law prohibits any employers from willfully misclassifying employees as independent contractors and provides civil penalties of not less than $5,000 and not more than $15,000 for each willful misclassification. The law also provides that the civil penalties can be even greater if the employer has engaged in a pattern or practice of misclassification. The law further authorizes the California Employment Development Department (EDD) to process requests for advice regarding classification of independent contractors, called Advice Memos. Employers must maintain, for at least two years, the
Heat Turned Up on Alleged Worker Misclassification
Posted in New and Recent LegislationThe classification of workers as independent contractors has been a focus of multiple federal and state agencies for at least the past two years. However, the September 19, 2011 announcement by the leaders of the U.S. Department of Labor, the IRS, and 11 state agencies that there will be a coordinated effort to fight misclassification signals a ratcheting up of the intensity. In justifying this program in these troubled economic times, these governmental entities have argued that worker misclassification is a widespread problem that cheats workers out of minimum wages and overtime pay and robs states of tax revenue. It also is expected that they will seek to hold a company liable for the sins of its subcontractors under a “joint employment” theory. The program will involve information-sharing between the agencies as well as coordinated enforcement.
Wisconsin Likely to Become 49th State to Enact “Concealed Carry”
Posted in New and Recent LegislationOn June 21, 2011, the Wisconsin Legislature passed a bill that would limit a company’s ability to prohibit weapons on its property. The bill, commonly referred to as the “concealed-carry bill,” would amend existing laws to allow licensed individuals to carry concealed weapons anywhere in the state, with few exceptions. Those weapons include handguns, electric weapons, knives (other than a switch blade), and billy clubs. Governor Walker is expected to sign the law.
Supreme Court Raises Bar for Class Action Plaintiffs in Wal-Mart v. Dukes
Posted in New and Recent LegislationOn June 20, 2011, the United States Supreme Court sided with Wal-Mart in a long-awaited decision regarding standards that apply to class action cases. The new opinion makes it harder for plaintiffs to obtain class certification.
The case was brought by three female Wal-Mart employees (current and former) who claimed that the local supervisors of Wal-Mart stores — on a nationwide basis — exercised discretion over pay and promotion matters in a way that discriminated against women. The underlying question was whether the plaintiffs can represent a class of 1.5 million women around the country, namely, “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or who may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.”
Finally — A Little Good News From the Supreme Court for Employers
Posted in New and Recent LegislationThe decisions from the United States Supreme Court have been less than friendly to employers during the past several years. The expansion of retaliation claims and what may support such claims are a prime example. However, this past week, the Supreme Court issued a decision in Fox v. Vice, U.S. No. 10-114 (June 6, 2011) recognizing a defendant’s right to recover fees and costs for a frivolous claim even where the plaintiff also has asserted a non-frivolous claim.
Final Dodd-Frank Rules Confirm Whistleblower Protections
Posted in New and Recent LegislationOn May 25, 2011, the SEC issued final rules to clarify certain whistleblower provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act. The key feature of the Act, enacted in July 2010, was to create a bounty or reward program that was designed to dramatically increase the number and quality of tips reported to the SEC about possible securities law violations. The Act also included protections for employees against retaliation for reporting information to the SEC. For example, the Act permits an employee to sue in court, rather than to pursue relief before the Department of Labor, and the suit can be filed up to six or, in some circumstances, 10 years later. Relief also can include double back pay. The SEC also reserved authority to address retaliation claims. Much like the whistleblower protections incorporated into other federal statutes in recent years, Dodd-Frank is expected to lead to a significant increase in
the number and complexity of retaliation claims for employers.
Job Protection for Medical Marijuana Use?
Posted in New and Recent LegislationEmployers are well advised to maintain some form of drug policy prohibiting employees from reporting to work/working under the influence of controlled substances and alcohol. Conditions on a private employer’s ability to perform drug testing depend on the state law applicable to its employees. Many states allow private employers to conduct random and reasonable suspicion drug testing of employees and most states permit employers to make an offer of employment conditioned on passing a drug test. The Washington Supreme Court recently addressed an employee’s challenge to her employer’s right to terminate her based on her use of medical marijuana, finding that the employee’s use of medical marijuana was not protected by the Washington Medical Use of Marijuana Act.
Congress Again Discussing Whether Employers Should Be Required to Provide Sick Leave
Posted in New and Recent LegislationHealthy Families Act legislation, which would require employers with 15 or more employees to provide workers with up to seven days of paid sick leave, was again introduced in the both the House and Senate on May 12, 2011 (H.R. 1876, S. 984). The House and Senate bills were identical and both were referred for committee review.
Proponents of the bills state that workers without paid sick leave report to work when ill (referred to as "presenteeism"), which generally results in the employees’ symptoms lasting longer and, with contagious illnesses, the infection of co-workers. The proponents assert that presenteeism costs employers $160 billion in lost productivity.
AT&T Mobility LLC v. Concepcion — (More) Good News for Employers?
Posted in New and Recent LegislationThe Supreme Court, led by Chief Justice John Roberts, continues to render decisions favorable to employers and continues to beat back attempts led largely by plaintiffs’ attorneys and consumer activists to limit the use of mandatory arbitration as an alternative to civil litigation in court.
The latest chapter in this ongoing saga was written on April 27, 2011, when the United States Supreme Court announced its 5-4 decision in AT&T Mobility v. Concepcion . What was the case about and what — if anything — does it mean for employers?
Milwaukee’s Sick Leave Ordinance Likely to Be Nullified
Posted in New and Recent LegislationIt seems likely that the Milwaukee Paid Sick Leave Ordinance will be nullified, and likely very soon. State legislators have been considering legislation that would make family and medical leave uniform throughout Wisconsin, which would essentially preempt Milwaukee’s Sick Leave Ordinance. The Senate has already passed such a bill, and on April 5, 2011, a Wisconsin Assembly committee approved an identical bill (AB-41). AB-41 is scheduled for an Assembly floor vote on April 12, 2011, and expected to pass the Assembly. Governor Scott Walker is expected to sign it.
EEOC Provides Insight Into Its Increase in Charges Filed
Posted in New and Recent LegislationAs reported on Foley’s Labor and Employment Perspectives Blog in November 2010, the EEOC filed nearly 100,000 charges in fiscal year 2010. This number amounted to the most charges ever in the EEOC’s 45-year history and represented a 7.2-percent increase over the number of charges filed in 2009.
NLRB Announces “Pre-Emptive Strike” Theory of Employer Liability
Posted in New and Recent LegislationOn January 28, 2011, the NLRB ruled that it is unlawful to terminate an employee who may, in the future, engage in a protected activity, even if the employee has not yet engaged in the protected activity. The board held that the employer terminated the charging party as a “preemptive strike” to thwart potential concerted activity. This ruling represents a significant departure from the longstanding rule that an employee actually has to engage in protected activity (like discussing wages with other employees) for an employer to be held liable for interfering with that protected “concerted activity.” This decision focuses on the employer’s intent, rather than the employee’s actions.
Employee Benefits Broadcast
Posted in New and Recent LegislationPlease join Foley’s Employee Benefits attorneys for the first broadcast of the 2011 series on Tuesday, February 22, 2011. This session’s featured segments are:
- Headline News: Health Care Reform Legal Challenges and Delayed Effective Date for Insured Plans and Nondiscrimination Rules
- Cram Session: Form 5500 Schedule C Reporting Requirements
- Fiduciary Fundamentals: Proposed New Fiduciary Definition
- In the Spotlight: 401(k) Fee Disclosure Regulations
For more information and to register, please visit Foley.com/ebb.
OSHA Under the Obama Administration — Lessons Learned and Your Role in Supporting a Common Defense
Posted in New and Recent LegislationJoin Foley and Lardner on March 24, 2011 at 11:30 CT for our Labor and Employment Inner Workings Web conference series. During this Web conference, we will discuss the renewed and reinvigorated OSHA, its heightened focus on enforcement, and efforts to expand ramifications and penalties in the near future. We also will identify best practices for responding should OSHA come knocking on your door.
For more information and to register for this 60 minute Web conference, visit our event page or Foley.com/iw.
Potential Loss of Attorney-Client Privilege Yet Another Social Media / Blogging Concern for Employers
Posted in New and Recent LegislationSocial media and blogging are quickly becoming areas of focus and concern for employers. In the past, we have encouraged employers to create social media and blogging policies and to be watchful of the content employees are submitting through these avenues, given concerns, among others, about protecting the status of confidential and trade secret information. We also have discussed concerns arising from the potential for use of social media as evidence. See Labor and Employment Law Weekly Update. A recent case shows another risk associated with social media and blogging — the potential waiver of the attorney-client privilege.
Wrongful Hiring
Posted in New and Recent LegislationWe’ve all seen claims for wrongful termination, but one recent case takes a different twist: wrongful hiring. An employee who was laid off eight months after moving his family across the country to take a new job was awarded $1.9 million in damages when he convinced a jury that his new employer knowingly induced him to accept a job that did not exist. The employee claimed the company was trying to entice potential buyers by making it seem by his hire that the company was further along in its development of a project than it was. The jury found the employer misrepresented to the employee how far along it was in developing the project for which the employee was hired, and the job he was supposed to do never developed. In the meantime, as technology changed his field, the employee’s skills fell behind, so that when his new employer laid him off, he had trouble finding work in the field.
New California Leave Law for Organ and Bone Marrow Donations
Posted in New and Recent LegislationEffective January 1, 2011, California employees may now take paid time off from work for the purpose of organ and bone marrow donations. Specifically, California SB 1304 requires that California employers with 15 or more employees provide their employees with up to 30 days of paid time off in any one-year period for the purpose of donating an organ to another person. An employee also may take up to five days of paid time off to donate bone marrow to another person. In order to receive the leave of absence, the employee must provide his or her employer with written medical certification.
Plans Allowed to Retain “Grandfathered” Status After Changing Insurance Coverage
Posted in New and Recent LegislationOn November 17, 2010, the U.S. Departments of the Treasury, Labor, and Health and Human Services released an amendment to the interim final regulations related to establishing and retaining a plan’s grandfathered status under the Patient Protection and Affordable Care Act (PPACA). The amendment provides guidance on when fully insured group health plans may change policies, certificates, or contracts of insurance without losing grandfathered status.
The amendment applies to changes to group health insurance coverage that are effective on or after November 15, 2010. The important date for this purpose is the effective date of the new coverage, not the date the plan enters into a new agreement for coverage. For example, if a plan enters into an agreement with an issuer on November 1, 2010 for a new policy to be effective January 1, 2011, the new policy will be covered under the amendment because it will not become effective until after November 15, 2010.
NLRB Claims That Disparaging Facebook Posting Is Protected Activity
Posted in New and Recent LegislationThe NLRB’s general counsel recently filed a complaint against an employer for terminating an employee who used her personal Facebook page to post disparaging remarks about her supervisor. The company had a written policy that prohibited employees from posting disparaging remarks online about the company or employees’ supervisors, co-workers, or competitors. The NLRB contends that the company’s policy is unlawful on its face because it tends to interfere with an employee’s right to engage in “protected concerted activity.” The concept of protected concerted activity applies both to unionized and unorganized employers. While this case is merely at the complaint stage and neither an administrative law judge nor the NLRB has ruled on the issues raised, it signals that the general counsel (who heads the NLRB’s prosecutorial function) intends to pursue employers who have similar broad Internet non-disparagement policies.
Is Employment Testing the Way to Go When the Job Market Turns Around?
Posted in New and Recent LegislationAlthough the U.S. economy is not back to where it was a few years ago, there are some indications that it is getting better, or soon will. As the economy recovers, jobs are created and employers need to make hiring and promotional decisions. Should employers choose to use employment tests or other similar selection procedures for those decisions? As is usually the case with good questions, the answer is “it depends.” One thing is certain however, following the Supreme Court decision in Ricci v. DeStefano. When using testing or other objective selection procedures, employers face potential liability from both individuals who are in a minority class (such as race or gender) and those who are not. Therefore, employers should not limit legal counseling to whether their testing complies with federal anti-discrimination laws. Instead, legal counseling should begin with the fundamental question of whether the employer should use testing in its selection decisions at all.
New California Employment Regulations: Is the “Reprieve” Over?
Posted in New and Recent LegislationAfter Democrat Gray Davis was recalled in 2003 and replaced by Republican Arnold Schwarzenegger, California employers enjoyed an eight-year “reprieve” (relatively speaking) from new state-level employment regulation. Gov. Schwarzenegger frequently wielded his veto pen. With the election of Jerry Brown as governor and both executive and legislative branches returned to Democratic hands, however, California employers should brace themselves in the coming year or two for a flurry of new laws as long-unaddressed demands by labor and other progressives are answered.
In the meantime, on October 8, 2010, new regulations of the California Division of Workers’ Compensation took effect. They require California employers, among other things, to: (1) post a new “Notice to Employees — Injuries Caused by Work” poster (also known as a DWC 7 poster); (2) provide an updated “Your Rights to Workers’ Compensation Benefits” pamphlet to new workers”; and (3) use an updated Workers’ Compensation Claim Form (DWC 1 form) and “Notice of Potential Eligibility” form that contain new information regarding the existence and use of so-called “medical provider networkers” (MPNs). There also have been a variety of changes to the regulations governing notifications that must be provided to employees regarding the institution of — or changes to — MPNs. Careful attention to these new regulations is important, as failure to comply with them can result in fines of up to $7,000. More detailed information about MPNs and the new regulations is available on the Division of Workers’ Compensation Web site.