Showing 77 posts from 2019.

NLRB Ruling: Simply Misclassifying Workers is Not an Unfair Labor Practice

September 3, 2019 by Tom H. Luetkemeyer

The National Labor Relations Board (NLRB) continues to retreat from its previously expansive approach to what might be considered interference with Section 7 rights under the National Labor Relations Act (the "Act"). Followers of Hinshaw's blog submissions will recall the NLRB gave a very broad interpretation during the Obama era to the scope of Section 8(a)(1) of the Act. An August 29, 2019 ruling from the NLRB in Velox Express, Inc. vs. Jeannie Edge further highlights how this is certainly not true of the Trump-era Board. More ›

NLRB Announces Three Proposed Rules, ULPs May No Longer Block an Election

August 30, 2019 by V. Brette Bensinger

On August 12, 2019, the National Labor Relations Board (NLRB) issued three proposed amendments to the rules on union representation elections. These three amendments, outlined below, would change the "blocking charge" policy, the voluntary recognition bar, and the rule on contractual representation clauses in the construction industry. More ›

New York Passes Significant Amendments to Anti-Harassment and Anti-Discrimination Law

August 29, 2019 by Concepcion A. Montoya

In an effort to align its legislation with the broader standards of the New York City Human Rights Law, New York State recently passed an amended anti-harassment bill which will significantly impact how employers handle harassment claims. Governor Cuomo signed the bill on August 12, 2019. Many of the new provisions, if not already in effect, will be effective within sixty days. All employers will be subjected to the new amendments, regardless of the number of employees. More ›

Florida Can Enforce Law Voiding Noncompete Contracts Between Doctors and Employers

August 26, 2019 by Hinshaw & Culbertson LLP

Last week, the U.S. District Court for the Northern District of Florida held that Florida can enforce a law that voids noncompete agreements between doctors and their employers. The recently adopted legislation—section 542.336, Florida statutes—voids any noncompete agreements between physicians and specialty physician groups when the group employs all the physicians practicing a particular specialty within a given Florida county. In 21st Century Oncology, Inc. v. Moody, the Northern District reasoned that the law doesn't unlawfully interfere with private agreements, and any such impairment is outweighed by the law's significant, legitimate public purposes. More ›

NLRB Serves Up Guidance for Restaurants on Mandatory Arbitration Agreements in Post-Epic Systems Era

August 23, 2019 by Alexander M. Baggio

The National Labor Relations Board (NLRB) recently provided guidance in Cordúa Restaurants, Inc., 368 NLRB No. 43, for employers seeking to require employees to sign class action and collective action waivers in arbitration agreements when facing litigation. By way of background, the U.S. Supreme Court previously held in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), that agreements containing class action and collective action waivers, and provisions stipulating that employment disputes be resolved by individualized arbitration, do not violate the National Labor Relations Act. As a result, the Court held that these agreements must be enforced as written to follow the Federal Arbitration Act (the "Act"). In Cordúa Restaurants, the NLRB was faced with two issues of first impression in the post-Epic Systems era: (1) whether the Act prohibits employers from circulating such agreements in response to employees opting in to a collective action; and (2) whether the Act prohibits employers from threatening to discharge an employee who refuses to sign a mandatory arbitration agreement. The NLRB held that both actions were consistent with Epic Systems and were not forbidden under the Act. The Cordúa Restaurants decision provides significant opportunity for employers to revise arbitration agreements to preclude participation in these multi-party litigations and require that employees sign these agreements. More ›

DOL Opinion Letter Expands Scope of Activities Eligible for Intermittent Family Leave

August 22, 2019 by Corey J. Swinick

On August 8, 2019, the U.S. Department of Labor – Wage and Hour Division (collectively the "DOL") issued Opinion Letter FMLA2019-2-A, which interpreted the Family and Medical Leave Act of 1993 (FMLA) to include providing intermittent family leave for a mother to attend committee meetings related to the serious health conditions of her children. The Opinion Letter expands the scope of activities eligible for intermittent FMLA leave. More ›

State of Illinois Prohibits Employers from Using Salary History in Hiring Process

August 20, 2019 by Linda K. Horras

On July 31, 2019, Illinois joined a growing list of state and local governments that have banned employers from using salary history in the hiring process. For those keeping count, there are now 18 state bans and 18 municipal bans nationwide. Illinois adopted its salary history ban through an amendment of the Illinois Equal Pay Act of 2003. Once the ban goes into effect, Illinois employers, employment agencies, and staff will be prohibited from seeking salary history information from a job candidate or her past employer. The main purpose of these bans is to bridge the wage gap between men and women doing the same or similar jobs. Many believe salary history information is used to perpetuate the long-running salary differences between the sexes, because employers have historically set starting salaries based on last reported wages by the applicant. The ban brings significant changes for employers, so it is likely that litigation in this area will increase. Fortunately, there are proactive steps employers can take to prepare for the ban, which goes into effect September 29, 2019. More ›

Major League Baseball Umpire Strikes Out in His Assertion of Union Privilege in Discrimination Claim

August 5, 2019 by Tom H. Luetkemeyer

A Federal District Court in New York recently fielded the issue of whether there is such a thing as a union relations privilege and the extent of that privilege. In Hernandez v. Office of the Commissioner of Baseball (18 Civ.No.35), baseball umpire Angel Hernandez alleged that Major League Baseball (MLB) had discriminated against him with respect to crew chief assignments and post-season umpiring assignments. There was no evidence Hernandez filed a grievance under his collective bargaining agreement regarding his discrimination claim and this was key to MLB's defense. Hernandez asserted union privilege in order to protect any discussions with representatives of the Major League Baseball Umpires Association (the "Union"). A New York District Court Judge, agreeing with the Magistrate Judge's recommendation, determined that under federal common law, any union relations privilege would only cover communications made in the context of representation by a union representative during disciplinary proceedings under a collective bargaining agreement. More ›

Hair Today…Discrimination Tomorrow? California and New York Adopt Hair Style Protections, Others Surely to Follow

July 26, 2019 by Hinshaw & Culbertson LLP

On July 3, 2019, California Governor Gavin Newsom approved Senate Bill No. 188 providing legal protection from discrimination in the workplace and in public schools for natural and protective hairstyles historically worn by black people and people of color. This bill expanded the scope of what is considered a protected race category under the California Fair Employment and Housing Act to include traits "historically associated with race, including, but not limited to, hair texture and protective hairstyles." Following California's lead, New York then became the second state to ban discrimination based on natural hairstyles on July 12, 2019, when Governor Andrew Cuomo signed into law S.6209A/A.7797A, which amends the Human Rights Law and Dignity for All Students Act. There is now proposed legislation in New Jersey as well, modeled after Senate Bill No. 188. This means employers in other states should take a hard look at their workplace hair and grooming policies to avoid discrimination actions. More ›

Employers Must Comply with FMLA Leave Designation Rules

July 12, 2019 by Tom H. Luetkemeyer

Employers seeking to juggle employee leave demands with their own regulatory compliance obligations received clarification from the U.S. Department of Labor (DOL). Specifically, the DOL published a clarifying opinion letter regarding the issue of whether an employer may delay the designation of leave that qualifies under the Family and Medical Leave Act (FMLA) and provide employees with leave beyond the 12-week statutory entitlement. The DOL ruled the employer cannot delay the designation. More ›

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