Department of Labor's Persuader Rule Convinces No One

Late last month, the Department of Labor published its "persuader" regulation final rule, which significantly strengthens a union's rights under the Labor Management Reporting and Disclosure Act (LMDRA). 

Generally, the LMDRA regulates the public reporting obligations of businesses seeking legal and non-legal counsel to oppose or manage relations with unions. A consultant, known as a "persuader," helps an employer navigate organizing drives and labor disputes. Before this final rule, The LMDRA required "direct" persuader activities to be reported, such as meetings between the persuader and employees, but exempted "indirect" activities, such as the preparation of materials for the employer to provide to its employees. More ›

Whistle while you work… on getting dressed: Wisconsin Supreme Court rules Hormel employees to be paid for time putting on clothing and safety gear

Like most employers, Hormel Foods paid its employees from the time they punched-in to the time they punched-out. Prior to punching the clock, manufacturing employees were required to dress in a clean white jumpsuit, boots, hard hat, eye protection, hearing protection, and hair net. The reverse process was repeated after the employees punched out at the end of their shift. Each employee spent almost six minutes per day off the clock "donning" [putting on] and "doffing" [taking off] required clothing and equipment. More ›

Is Labor Law Putting the Franchise Business Model at Risk?

Over the course of the last year, we have kept you abreast of National Labor Relations Board (NLRB) case law and Department of Labor (DOL) interpretive/enforcement guidance, how these agencies are changing their view of the responsibility of parent corporations for the employment relationship between employees of temporary agencies and franchises, and how these changes have the potential to drastically alter the benefits and risks of utilizing these relationships.

In what could become one of the most enlightening applications yet of this emerging shift, an NLRB hearing before an administrative law judge began last week in involving allegations by workers that McDonald's is responsible as a joint employer for the alleged labor law violations of its franchisees. The franchisors are alleged to have threatened, disciplined, or fired franchise employees who participated in widely-publicized campaigns for collective bargaining and a $15 minimum wage. More ›

New York District Court Holds Sexual Orientation not Protected by Title VII

Last week, the Equal Employment Opportunity Commission ("EEOC") announced filing its first federal lawsuits against private-sector businesses, challenging sexual orientation discrimination as sex discrimination. Coincidentally, a week later, the U.S. District Court for the Southern District of New York held in Christiansen v. Omnicom Group, Inc. that, although sexual orientation discrimination is "reprehensible," it does not violate Title VII. These cases demonstrate the legal community's struggle in defining and interpreting the law as currently written while, at the same time, attempting to ensure equal protections for gay and lesbian individuals. More ›

Ninth Circuit Holds that DOL may Expand Regulation of Employers’ Tip Pooling Practices

The restaurant and gaming industry lost a battle in the Ninth Circuit over whether employers that pay their workers at least the minimum wage are subject to Department of Labor regulations restricting tip pooling arrangements. More ›

The Deadly 4-4 SCOTUS Split: What Happens in the Wake of Justice Scalia's Death

With the Supreme Court coming out of recess today, the practical implications of Justice Scalia's death will become more apparent. Justice Scalia's death last week has a tremendous impact on the upcoming sessions of the Supreme Court.  More ›

All 'Jiggery-Pokery' Aside: Justice Scalia's Impact on Employment Law

Allow me to be the palate cleanser to Mitch McConnell's shotgun-wedding-esque "memoir" to Justice Scalia.  Barely an hour after the Supreme Court announced Scalia's death, McConnell briefly offered his condolences to Scalia's family, but made the focus of his statement a political shot at President Obama. The Democrats returned fire, and since then, any mention of Scalia barely mentions his life and work, instead heading straight into the political implications of his death. Rather than follow in those footsteps, let's take a few minutes to honor a brilliant legal mind and eloquent, though sometimes eccentric, writer, regardless of whether we disagreed with or cheered him on as he punched his way through argument after argument. More ›

EEOC’s Updated Retaliation Enforcement Guidance Seeks to Expand the Reach of its Anti-Retaliation Laws

Effectively responding to employee discrimination complaints by current employees without running afoul of federal and state anti-retaliation laws presents a slippery slope for all employers. In fact, retaliation complaints make up nearly half of all discrimination charges filed with the EEOC today. Thus, it is critical that employers, their managers, supervisors, and employees understand who the laws protect and what constitutes retaliation.

On Thursday the EEOC sought to clarify these standards by issuing updated proposed enforcement guidance. The proposal is the first update to the EEOC’s Compliance Manual since 1998. The proposal was prompted by significant developments in the law and the marked increase of retaliation claims over the last eighteen years.

The 76-page proposal covers the definition of retaliation, the elements of a retaliation claim, interference claims under the Americans with Disabilities Act, remedies, and best practices.  Rather than summarize all of the above, I will highlight the most significant developments below. More ›

Captivating! NLRB Reverses 57-Year-Old Decision, Expands "Captive Audience" Rule in mail Ballot Elections

In conjunction with other recent changes to its rulings regarding organizing and elections, the National Labor Relations Board recently ruled to expand the period of time during which "captive audience" meetings are banned in mail-ballot elections. The ruling aligns the rules for manual and mail-ballot elections. Although this alignment may simplify compliance, employers should be aware that captive audience meetings are now banned 24-hours prior to the mailing of ballots and that the ban continues through the election. More ›

EEOC Announces plan to Begin Collecting pay data on EEO-1 Reports

The Equal Employment Opportunity Commission (EEOC) announced last Friday a proposed rule that will require all employers with 100 or more employees to report pay and hours based on their employees' race and gender. The rule change would revise the EEO-1 Report to include this new reporting category. The proposed rule is scheduled for formal publication on Monday, February 1.The public has until April 1, 2016 to comment. More ›