Hunton Employment & Labor Perspectives

We previously informed you of the National Labor Relations Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in which the Board  overruled the controversial joint employer test which it had announced in Browning-Ferris Industries, 362 NLRB No. 186 (2015).

On February 26, 2018, the Board entered an order vacating the Hy-Brand decision, 366 NLRB No. 26 (2018).  It did so in light of a determination by the Board’s Designated Agency Ethics Official, that Board Member William Emanuel “is, and should have been ...

On February 12, 2018, the Equal Employment Opportunity Commission (the “EEOC”) approved and released its Strategic Plan for Fiscal Years 2018-2022. Congress requires government agencies like the EEOC to formulate strategic plans every four years and post the plans on their website. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. In a press release introducing the plan, the EEOC indicated the plan “will serve as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”

We have reported on several Board decisions issued by a new Republican majority in the final days of 2017, but questions remain as to what issues the Board will address next to scale back on Obama-era precedent.  In recent weeks, Republican Board Members have provided some hints in a pair of footnotes in two unpublished decisions.

Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017) (“Raytheon”), is one of several decisions issued this month by the National Labor Relations Board’s (the “Board”) new Republican majority which reverse Obama-era precedent.  Raytheon overrules the Board’s decision E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (“DuPont”), which limited the changes employers can make unilaterally in a union environment.  Raytheon clarifies the degree to which employers may rely on past practice to make unilateral changes to terms of employment once a collective bargaining agreement has expired, and, more specifically, offers welcome guidance to employers with regard to continuation of health benefits under those circumstances.

During a week that brought several notable decisions, the National Labor Relations Board issued a ruling on Friday, December 15, 2017, overturning its controversial 2011 Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“Specialty Healthcare”) decision, which held that in order for employees to be included in a collective bargaining unit, employers had to prove the employees shared an “overwhelming community of interest” with one another.  The unions argued that the “overwhelming community of interest” burden was all but impossible to meet and effectively allowed unions to create “micro-units” of any number, group, or sub-group of employees the unions saw fit.  This in turn meant that an employer could be faced with negotiating collective bargaining agreements with multiple groups of employees who often shared the same schedule, workplace, and general terms and conditions of employment, but nonetheless were represented by different locals or divisions of the same or multiple unions.  In one particularly glaring example, the Board approved a union’s request for separate bargaining units in each of nine different graduate student departments at Yale University despite the fact that the union already represented existing, university-wide bargaining units.

On December 14, 2017, in a 3-2 decision along party lines, the National Labor Relations Board (the “Board”) issued a decision in The Boeing Company, 365 NLRB No. 154 (2017) case.  This is a significant and long-awaited victory for employers grappling with unfair labor practice charges stemming from facially neutral workplace rules and signals the Board’s intent to retreat from regulating non-union activity.  Specifically, Boeing  rescinds the onerous workplace rule standard in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) in favor of a new, more rational test.

The National Labor Relations Board issued a much-anticipated decision on Thursday, overruling its controversial 2015 Browning-Ferris decision that unions and employees argued drastically expanded the definition and scope of the Board’s joint-employer doctrine.  In Browning-Ferris, the Board departed from decades of precedent and held that entities who merely possessed—as opposed to directly and immediately exercised—control over workers would be deemed joint employers for purposes of assessing liability under the National Labor Relations Act.  The Board used the Browning-Ferris decision to expand its reach under the joint-employer doctrine to include, for example, companies that relied on staffing agencies and in some cases, parent companies that did not exercise immediate or direct control over a subsidiary’s workers, but had the potential authority to affect certain terms and conditions of employment.  The Browning-Ferris decision faced heavy criticism from employers as well as an appeal of the decision itself to the D.C. Circuit Court of Appeals.

On November 15, the EEOC issued its 2017 annual Performance and Accountability Report, providing details and statistics regarding the Commission’s performance and goals during the period of October 1, 2016 to September 30, 2017.

Federal contractors have extra time this year to submit their annual report.   The Department of Labor has this notice on its website.

NOTICE: IMPACT FROM HURRICANES HARVEY AND IRMA

NOTICE: In order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, Federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely Report or failure to comply with Federal regulations.

In future years, the deadline will return to September 30th.

On September 15, the White House announced that President Trump will nominate Peter B. Robb, a longtime labor and employment attorney, to become the National Labor Relation Board’s next general counsel.  Assuming Robb is confirmed by the Senate, he would likely take over his position  hopefully in early November following the end of the incumbent’s General Counsel’s term and Robb’s swearing in.

On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board.  Kaplan’s confirmation moves the Board one step closer to a Republican majority.  Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.  Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB.  Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.

On June 27, President Trump nominated labor attorney William J. Emanuel to fill the last vacancy of the five seats on the National Labor Relations Board.  Emanuel is a management-side labor attorney who has practiced many years before the Board.  Emanuel has extensive experience arguing in support of employee class and collective action waivers, including involvement in multiple cases that have either been before the Supreme Court or directly led to precedent that the Supreme Court is now set to consider.

As we have said in previous posts, President Trump’s election and now ...

On June 12, 2017, the Office of Labor Management Standards of the Department of Labor (DOL) published a Notice of Proposed Rulemaking that proposes to rescind the controversial “persuader rule” implemented by the DOL under the Obama administration. This rule sought to require disclosure of advice to employers from consultants and attorneys who engage in activities designed to persuade employees not to unionize. This announcement is on the heels of the DOL’s June 7, 2017, press release withdrawing two administrative interpretations issued by the DOL under the Obama administration concerning misclassification of independent contractors and joint employment, as discussed in a previous post. The recent flurry of activity by the DOL indicates that the Trump administration is following through with its promise to loosen many of the onerous restrictions placed on employers by the DOL in the Obama-era.

On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace. Despite the enactment of the ADEA a half-century ago, the participants cited various statistics demonstrating the difficulty still facing older individuals in the workplace. This discrimination faced by older workers in an aging-American workforce coupled with various statements by Chairman Lipnic regarding the ADEA are signals to employers that ADEA enforcement may receive an increased focus during the Trump administration.  In a previous post, we discussed the impact of Chairman Lipnic’s appointment and the direction of the EEOC under her new leadership and highlighted that ADEA enforcement would be one of the agency’s main focuses.

President Trump nominated attorney Marvin Kaplan to fill one of two vacancies on the National Labor Relations Board on June 19, 2017.  Kaplan currently works on the Occupational Safety and Health Review Commission and previously served as Republican counsel to the House Education and Workforce Committee which, among other things, provides oversight of the NLRB.  The five-seat NLRB currently consists of only three members: Chairman Philip Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D).  With members appointed (subject to Senate approval) to 5-year terms, the NLRB is typically composed of three members of the sitting President’s party and two from the other party.  If Kaplan’s appointment is approved, it could clear the way for President Trump to appoint a third Republican, giving the NLRB its first Republican majority since 2008.

Two recent rulings have labor law observers questioning where the line is in disciplining employees for making offensive or obscene comments toward their employer. Seemingly at odds are a recent Second Circuit ruling finding such behavior is protected activity under the NLRA and a recent NLRB ruling finding the use of profanity towards management is not protected.

On May 24, 2017, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fl.) each introduced the Representation Fairness Restoration Act in their respective Houses of Congress in an attempt to reverse the controversial 2011 ruling by the National Labor Relations Board in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. (2011). As has been discussed in previous posts, the Board in Specialty Healthcare announced a new standard for determining the appropriateness of a bargaining unit. Under the new standard, unless an employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other portion of the workforce, the requested bargaining unit will be approved. This new standard has encouraged the formation of smaller “micro-bargaining units.” These micro-bargaining units have been an administrative and managerial headache for employers, requiring them to bargain with multiple small units in the same workplace, and sometimes in the same department.

[From Hunton’s Retail Blog]  If you are a retailer, you may have policies and procedures in place regarding who can speak on behalf of your company. Such policies may generally instruct employees not to speak to the press as a representative of the company, and to direct all media inquiries to a particular person or department. Similarly, if you are a retailer, you may have a policy in place that instructs employees to forward any reference requests to your human resources department. These commonplace policies allow retailers to control their public image and protect employee ...

On May 23, 2017, the Department of Labor released its budget proposal for fiscal year 2018 (FY 2018).  The budget contains several cost-cutting measures that reflect the new priorities of the Trump administration.

A notable aspect of the proposed budget is a request to merge the EEOC and OFCCP.  The  proposal aims for “full integration” of the two agencies by the end of FY 2018.  To begin that transition, the proposal suggests sizable drops in the OFCCP’s current funding and staffing.  The OFCCP’s budget is proposed to drop from $105,275,000 to $88,000,000 (a reduction of $17.3 million).  The headcount is proposed to drop nearly 25%, from 571 full-time equivalent (FTE) employees to 440.

The effects of the regulatory reform initiatives of the Trump Administration are beginning to be felt at the Occupational Safety and Health Administration (OSHA) with the formal action by OSHA to finalize withdrawal of the “Volks Rule” regulation. On May 3, 2017, in response to a CRA resolution of disapproval, OSHA published a final rule removing amendments to OSHA’s recordkeeping regulations from the Code of Federal Regulations.

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The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”).  In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review.  This conclusion was fairly uncontroversial.  Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard.  The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.

Published in Law360

Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit’s recent panel decision in Salinas v. Commercial Interiors, Inc., which creates an altogether new and incredibly broad joint employment standard under the Fair Labor Standards Act that makes the NLRB’s Browning-Ferris joint employment standard seem temperate at best.

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On March 6, 2017, an NLRB administrative law judge (“ALJ”) issued a ruling finding that a nonunion automotive manufacturing facility in Alabama violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it terminated three employees who walked off the job over a holiday-season scheduling dispute. The ALJ found that the employees were engaged in protected concerted activity despite the fact that they denied discussing the decision to leave work before their shifts had ended.

On March 9, 2017, the United States Circuit Court for the District of Columbia heard oral argument in the case entitled Browning-Ferris Industries of California, Inc., d/b/a/ Browning-Ferris Newby Island Recyclery v. National Labor Relations Board,  Nos. 16-1028, 16-1063 and 16-1064.  (Our prior blogs about this case can be found here.) This appeal challenges the National Labor Relations Board’s (NLRB) new and imprecise standard for determining whether companies are “joint employers” for purposes of the National Labor Relations Act. The new standard, first issued in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), abandons consideration of a company’s direct and immediate control over employees in favor of a fact-specific approach that focuses more on “reserved” or “indirect” control.

Published in Law360

The National Labor Relations Board has an 80-plus year history of administering federal labor law and regulating labor-management relations in the United States. Formed in 1935 by the passage of the original Wagner Act, the board’s primary obligations are to oversee the formation of collective bargaining units, to investigate and prosecute unfair labor practices, and to establish legal precedent through regulations and binding case precedents. In carrying out its responsibilities, the board is generally expected to act as a neutral arbiter of facts and ...

Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit Court of Appeals’ recent panel decision in Salinas v. Commercial Interiors, Inc., No. 15-1915 (4th Cir. 2017), which creates an altogether new and incredibly broad joint employment standard under the Fair Labor Standards Act that makes the NLRB’s Browning-Ferris joint employment standard seem ...

On March 9, 2017, a federal appeals court in Washington, DC will hear argument in a challenge to the National Labor Relations Board’s controversial standard, announced in August 2015, for finding two businesses to be joint employers, and thus responsible for each other’s legal liabilities on the labor front.  The labor community is keeping a close eye on the case.  If the NLRB’s standard is upheld, businesses across the country will face the prospect of sharing labor and employment risk with their subcontractors, supply chain partners, and maybe even their franchisees.

Hunton & Williams recently published an entry on its Retail Law Resource Blog regarding what employers can expect from Victoria Lipnic, the new acting chair of the Equal Employment Opportunity Commission (“EEOC”) and an EEOC Commissioner since 2010.  Since that publication, Lipnic has made public comments as to what she envisions from the EEOC under her leadership.  Several key topics from those comments are summarized below:

Join us for a complimentary webinar on Tuesday, March 7, 2017, 1:00 p.m. – 2:00 p.m. EDT.

While proactive retail employers are responding to, and preparing for, union organizing efforts at their retail stores, many supply chain workforces remain vulnerable to targeted union campaigns. We will address the special circumstances and vulnerabilities of workforces at warehouses, distribution centers, transport and other supply chain operations. We will review some of the new dynamics in supply chain operations that attract union interest, and offer suggestions to reduce the risk ...

On February 14th 2017, Hunton labor partner Kurt Larkin will present testimony at the U.S. House of Representatives Subcommittee on Health, Employment, Labor and Pensions hearing on "Restoring Balance and Fairness to the National Labor Relations Board."  Kurt will discuss a variety of NLRB issues, including joint employer standards, ambush elections and micro unions.  The hearing will take place at 10:00am EST and can be viewed live here.

The Trump Administration will leave in place an executive order signed by President Barack Obama, which bans sexual orientation and gender identity discrimination by federal contractors.  President Obama signed the order in 2014.  By doing so, he amended and expanded previous executive orders signed by Presidents Nixon and Clinton, which ban discrimination by federal contractors on the basis race, color, religion, sex, national origin, handicap, status as a parent, and age.

By now, most in the employer community are all too familiar with the NLRB’s controversial “micro-bargaining unit” standard announced in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011).  In that case, the Board announced a standard that in almost all instances results in approval of a union-requested bargaining unit, unless the employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other part of its workforce.  This standard has proven difficult, if not impossible, for employers to meet, and the Board has pushed the standard into retail, manufacturing, and even wineries.  Now, the Board has introduced its micro-unit rule in higher education, and the results could be disastrous for universities across the nation.

On November 21, 2016, the EEOC announced the release of new enforcement guidance addressing national origin discrimination.   Like many enforcement initiatives of late, the update is intended to address current cultural issues and legal developments.  It updates an EEOC compliance manual section from 2002 (Volume II, Section 13: National Origin Discrimination).  The EEOC also issued a small business fact sheet and a Q-and-A document.

Yesterday a federal court in Texas partially enjoined enforcement of what is known as the “blacklisting” rule.  The injunction comes one day before reporting was to begin under the Fair Pay and Safe Workplaces Executive Order, 13673.

Originally published by Construction Business Owner

By now, the employer community is well aware of the wide-ranging implications of Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (2015) (Browning-Ferris)—a decision that upended decades of National Labor Relations Board (NLRB) precedent and dramatically expanded the definition of “joint employer” under the National Labor Relations Act (NLRA). On August 16, 2016, in Retro Environmental, Inc./Green JobWorks, LLC , 364 N.L.R.B. No. 70, 2016 WL 4376615 (August 16, 2016) ( Retro), the NLRB applied ...

Enforcing a race-neutral grooming policy that prohibits employees from wearing dreadlocks is not intentional racial discrimination under Title VII.  That is what the Eleventh Circuit recently held in Equal Employment Opportunity Commission v. Catastrophe Management Solutions, --- F.3d ---, No. 14-13482, 2016 WL 4916851 (11th Cir. Sept. 15, 2016).

In a brief filed on September 7, 2016 (“NLRB Brief”), the National Labor Relations Board (“NLRB” or “the Board”) urged the United States Court of Appeals for the District of Columbia Circuit to uphold its new “joint employer” standard, set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015). Through this new standard, the Board now seeks to impose collective bargaining and other NLRA obligations on companies that may indirectly control certain conditions of employment, or that merely reserve (but do not exercise) such control.  Casting aside the more precise “direct and immediate control” standard it explicitly adopted in 1984, the Board in Browning-Ferris opted instead to analyze joint control issues on a fact-specific, case-by-case basis, with a greater focus on reserved and indirect control.  The case on appeal is entitled Browning-Ferris Industries of California, Inc., d/b/a/ Browning-Ferris Newby Island Recyclery v. National Labor Relations Board,  Nos. 16-1028, 16-1063 and 16-1064.

The OFCCP’s increasingly aggressive enforcement scheme continues to present challenges for federal contractors and subcontractors.   Please join The OFCCP Institute for a comprehensive two-day seminar featuring several distinguished speakers, including Chai Feldblum of the EEOC, Consuelo Pinto of the DOL’s Division of Civil Rights, and OFCCP and employment attorney, Christy Kiely.

Date: Wed, November 9th - Thurs, November 10th, 2016

Early Bird Discount ends September 29^th

OFCCP Institute website

Join us on Wednesday, October 5, 2016, from 1:00 p.m. – 2:30 p.m. ET, for a practical breakdown of President Obama’s “Fair Pay and Safe Workplaces” Executive Order (13673), issued in 2014.

President Obama’s “Fair Pay and Safe Workplaces” Executive Order (13673), issued in 2014, at last is going into effect. The Order requires federal contractors and subcontractors to report a three-year history of violations of fourteen different labor and employment laws, to the government as part of the procurement process. The government can deny a federal contract to a contractor with a sufficiently negative compliance record.

The first wave of reporting, for prime contractors, is due on October 25, 2016.

Employers should be aware of a recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit that overly broad confidentiality and nondisparagement policies violate the National Labor Relations Act (“NLRA”).  The case, Quicken Loans v. NLRB, 2016 U.S. App. LEXIS 13778 (D.C. Cir.), involved an employment policy which prohibited employees from using or disclosing a broad range of personnel information without Quicken's prior written consent or to criticize publicly the company and its management. The National Labor Relations Board (“NLRB” or “Board”) determined that those rules ran afoul of Section 7 of the NLRA because they “unreasonably burden the employees’ ability to discuss legitimate employment matters, to protest employer practices, and to organize.” Quicken then appealed the NLRB’s decision to the D.C. Circuit Court of Appeals.

Today, on August 25, 2016, the Department of Labor issued final Guidance implementing Executive Order 13673, Fair Pay and Safe Workplaces, bleakly referred to by the contractor community as the “blacklisting” order.  The same day, a Final Rule  and Guidance was added to the Federal Acquisition Regulation (FAR) to implement that Executive Order, by the Department of Defense (DoD), General Services Administration (GSA) and National Aeronautics and Space Administration (NASA).

The “blacklisting” order places a new focus on labor and employment issues during the federal procurement process. Covered federal contractors and subcontractors must now disclose to the government previous violations of fourteen different federal labor and employment laws, plus equivalent state counterparts.  Pre-award disclosures must be made before a contract can be awarded to ensure the company is a “responsible” labor source.  Updated reports then are required every six months post-award.  The rule also imposes limits on the arbitration of certain employment claims, and requires specified paycheck disclosures and transparency.

The issue of religious background has generated substantial discussion during the current election cycle. Recently, the federal government highlighted the issue of religious discrimination and accommodation in the workplace.

On July 22, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the release of a one-page fact sheet specifically designed to educate young workers of their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination. The fact sheet stresses that employers may ...

The Fifth Circuit held recently that the State of Texas had standing to sue the Equal Employment Opportunity Commission (“EEOC”) over the Commission’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” (the “Guidance”) issued in April 2012, which warned employers that blanket policies against hiring felons could disproportionately exclude minorities and thus be deemed discriminatory. Texas originally sued the EEOC in late 2013 seeking an injunction against enforcement of the Guidance and a declaratory judgment that state agencies be allowed to maintain their policies, as instituted under state law, barring categories of convicted felons from state employment. In its complaint, the State also claimed that the EEOC’s Guidance improperly preempted state law. The lower court granted the EEOC’s motion to dismiss on grounds that Texas lacked standing to sue the EEOC because the Commission cannot bring an enforcement action against the state for failing to comply with the Guidance. The lower court also held that the EEOC Guidance did not constitute a “final agency action” under the Administrative Procedure Act (“APA”), and thus the Guidance was not subject to judicial review.

Earlier this week, the NLRB issued yet another troubling decision in the joint employer space, a world the Board already turned upside-down last summer with its landmark Browning Ferris ruling. In Miller Anderson, the Board overturned Bush-era precedent and held that a union seeking to represent employees in bargaining units that combine both solely and jointly employed employees is no longer required to obtain the consent of the employers, provided the proposed bargaining unit is appropriate under “traditional” Board precedent. Under the prior rule established in the Board’s 2004 Oakwood Care decision, the Board would not allow employees from nominally different employers to form a single bargaining unit without consent, because employers who join a multi-employer bargaining unit must all consent to their inclusion (a sound policy given the host of practical and legal variables that can arise when separate employers agree to bargain together).

We are excited to introduce a new video series, Things You Need To Know in 5 Mins or Less. Each episode will feature a discussion of the legal and business challenges facing the real estate industry, and will include lawyers from a variety of disciplines throughout the firm. In the first episode of this new video series Carl Schwartz, co-chair of the firm’s global real estate practice, sits down with labor and employment partner Kurt Larkin to discuss the National Labor Relations Board “joint employer” rule: how it has changed and what it means for the real estate industry. Watch ...

A concerned business community has closely followed the NLRB’s shifting views on the concept of “joint employers” - separate companies that are deemed to be so interconnected that they should be treated as one for purposes of labor relations activity and unfair labor practice liability. In August of last year, the NLRB decision in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), put into place a broad new test that dramatically expands the definition of “joint employer.” Now, an entity will be found to be a joint employer if it exercises only indirect control over the employment terms and conditions of another company’s employees. Indeed, joint employer status can be established if a company simply possesses, but never exercises, the ability to control such terms.

Since President Lyndon B. Johnson signed Executive Order 11246 in 1965, the Office of Federal Contract Compliance Programs (OFCCP) has been charged with ensuring nondiscrimination and affirmative action for females in employment. In 1970, regulations were issued to further this goal, known as the Sex Discrimination Guidelines, codified at 41 CFR Part 60-20.

Those guidelines have not been substantially updated in the 46 years since. Until now, that is. The DOL acknowledges the Guidelines have become “out of touch with current law and with the realities of today’s workforce and workplaces.” See: OFCCP Fact Sheet on Sex Discrimination Final Rule. So, the OFCCP is bringing the Guidelines “from the ‘Mad Men’ era’ to the modern era.’”

With its May 26 Lewis v. Epic-Systems Corp. decision, the Seventh Circuit became the first circuit to back the reasoning in D.R. Horton, Inc., 357 NLRB No. 184 (2012), and held that a mandatory arbitration agreement prohibiting employees from bringing class or collective actions against their employer violates the National Labor Relations Act (NLRA). This decision creates a circuit split regarding the enforceability of arbitration agreements with class action waivers in the employment context, and the issue is now ripe for potential Supreme Court review.

Sitting as the lone dissenter on the National Labor Relations Board (NLRB) might seem like a futile exercise. Grinding away on opinions that are critiques of the law as stated by your colleagues can be disenchanting work. But as a former NLRB member, I can attest that dissents are also valuable tools for future board members and the courts. Indeed, one of my proudest moments as a lawyer came when a court of appeals reversed the board “for the reasons stated by Member Meisburg.”

A recent NLRB decision involving an employer’s work rules illustrates the value of a powerful dissenting ...

New York Attorney General Eric T. Schneiderman announced yesterday that he has filed a “wage theft” lawsuit against Domino’s Pizza Inc., and several of its New York area franchisees. The case is particularly notable in that Schneiderman is pursuing a joint employer liability theory, seeking to hold Domino’s liable for the alleged wage payment violations of its franchisees. This is the first time Schneiderman has pursued such a claim in a wage payment case, and the lawsuit potentially opens a new front in federal and state enforcement agency attempts to expand the definition of what it means to be a joint-employer.

One year has passed since the National Labor Relations Board issued its controversial “ambush” election rules, and as expected, the rules have caused a substantial reduction in the time between a union’s filing of a petition and the conduct of the election.

But in a surprise to many employers, the rules so far have produced virtually no change in the number of union election petitions and union victories. Many had predicted that the shorter campaign period would result in more unionization.

A recent National Labor Relations Board decision found that particular provisions of an employer’s Code of Conduct unlawfully discouraged employees from engaging in Section 7 Activity.

Section 7 of the National Labor Relations Act protects an employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The Act further makes it unlawful for an employer to interfere with these rights.  What qualifies as employer interference is frequently considered by both the Board and courts.

On March 25, 2016, OSHA published a final rule which significantly reduces the permissible limits of silica dust to which workers can be exposed.  The rule will take effect 90 days after publication, and will be codified at 29 CFR Parts 1910, 1915, and 1926.

In Dover Energy, Inc., Blackmer Division v. National Labor Relations Board, the Board held that Blackmer violated section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it threatened Tom Kaanta, a Blackmer employee and United Auto Workers Union shop steward, with disciplinary action if he continued to make “frivolous” information requests to the company’s lead negotiator during collective bargaining agreement (“CBA”) negotiations. On March 22, 2016, the U.S. Court of Appeals for the D.C. Circuit reversed and held that the NLRB’s factual findings were not supported by substantial evidence.

We have written on several occasions in this space about the NLRB’s controversial new joint employer standard and the damaging impact it may have on business-to-business relationships in the United States.  This morning, Labor & Employment partner Kurt Larkin testified before the U.S. House of Representatives’ Small Business Subcommittee on Investigations, Oversight and Regulations in a hearing on the negative effects the new standard may have on small business.  The House is currently considering an amendment to the National Labor Relations Act that would return the joint ...

The United States Department of Labor (the “DOL”) has announced a Notice of Proposed Rulemaking (“NPRM”) to implement Executive Order 13706, which requires federal government contractors to provide employees with up to 7 days of paid sick leave annually. As a result, the DOL estimates that employers will be compelled to provide additional paid leave to 828,000 employees, including 437,000 employees who do not currently receive any paid sick leave.

Coverage

On March 1, 2016, the Securities and Exchange Commission (“SEC”) settled administrative charges against a popular telecommunications equipment supplier, Qualcomm Incorporated, under the Foreign Corrupt Practices Act (“FCPA”). According to the SEC, in addition to unlawfully providing meals, gifts and entertainment to foreign officials in an effort to win new business, Qualcomm also offered full-time employment and paid internships to family members and friends of foreign government officials in an effort to curry favor. In some cases, it appears these friends and family members would not have otherwise qualified for employment at Qualcomm and special accommodations were made to hire them. To settle the case, Qualcomm agreed to cease and desist from future violations, paid a $7.5 million civil monetary penalty and agreed to other heightened compliance measures.

We previously have discussed that, as expected, the implementation of the NLRB’s ambush election rules in April 2015 considerably shortened the average time between the date of a petition being filed by a union and the date of election.  This change substantially impacts the employer’s ability to conduct an effective campaign in the event of a union petition.

The Equal Employment Opportunity Commission (“EEOC”) has implemented nationwide procedures which require all EEOC offices to release copies of an Employer's entire position statement, together with all non-confidential documents submitted in support of the position statement, to an Employee who has filed a discrimination charge, or his or her representative (including attorneys). These procedures apply to all position statements requested after January 1, 2016. Previously, such disclosures were made in the discretion of the particular field offices or investigators, and practices were inconsistent. As often as not, EEOC investigators might summarize the Employer’s evidence and arguments for the Employee, in order to solicit the latter’s response.

In February of 2016, the Equal Employment Opportunity Commission (“EEOC”) released detailed information and statistics summarizing the charges of discrimination that the agency received throughout its 2015 fiscal year. The EEOC is the administrative agency charged with implementing and enforcing a number of federal anti-discrimination employment statutes, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). Under each of these statutes, employees seeking to bring a claim of unlawful discrimination, harassment, or retaliation must first file a charge with the EEOC. The recently released report provides helpful information regarding the types of charges that employees filed in the 2015 fiscal year, which ran from October 1, 2014 to September 20, 2015.

On January 21, 2016, the EEOC announced that it will seek public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws.  The EEOC issued its last guidance update on the subject of retaliation in 1998.  The EEOC’s 73 page draft guidance is available for review here and the 30-day input period ends on February 24, 2016.

As previously reported, the EEOC announced on January 29, 2016 its proposal to require businesses with 100 or more employees to annually turn over pay data by gender, race and ethnicity.   The public has until April 1, 2016 to submit comments on the proposal.  Both the Retail Industry Leaders Association (RILA) and the U.S. Chamber of Commerce have issued statements that the proposed requirements would be overly burdensome for employers and would result in the collection of data that would fail to provide any meaningful insights as to whether employer pay practices are discriminatory.  ...

This webinar will discuss President Obama’s Executive Order on federal contractor blacklisting and its potential impact on government contractors. A final regulation is on the horizon, and this program will tell you what you need to know NOW to be prepared.

Thursday, February 18, 2016
1:00 p.m. – 2:00 p.m. ET

Register Here

The Equal Employment Opportunity Commission (“EEOC”) is asking the Eleventh Circuit Court of Appeals to recognize that discrimination based on an employee’s sexual orientation constitutes unlawful discrimination “because of . . . sex,” in violation of Title VII of the Civil Rights Act of 1964.

The EEOC advances this argument in an amicus brief in support of Barbara Burrows, a lesbian college professor and administrator who claims she was subjected to sex discrimination by her former employer, the College of Central Florida, based on her same-sex marriage and how she looked and acted. The District Court granted summary judgment in favor of the College, holding that Burrows’s sex discrimination claim was “merely a repackaged claim for discrimination based on sexual orientation, which is not cognizable under Title VII.” Burrows appealed, and the case is currently pending before the Eleventh Circuit.

The Equal Employment Opportunity Commission announced on January 29, 2016 its proposed revision to the Employer Information Report (EEO-1) that would obligate businesses with 100 or more employees to annually turn over pay data by gender, race and ethnicity. Although employers will not have to divulge specific pay rate information for individual employees, they would have to report pay bands across 10 different job categories.

We previously reported on the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015), wherein the Court held that a court may review the EEOC’s conciliation efforts.

On remand, the EEOC renewed its motion for partial summary judgment on Mach Mining’s failure to conciliate affirmative defense. On January 19, 2016, the U.S. District Court for the Southern District of Illinois granted the motion, finding that the Supreme Court had expressly rejected Mach Mining’s position that it is entitled to receive demand calculations and additional information during the conciliation process. EEOC v. Mach Mining, LLC, No. 11-cv-00879, 2016 BL 13454 (Jan. 19, 2016).

In the second half of December 2015, the National Labor Relations Board (“NLRB”) issued 16 rulings on the illegality of mandatory arbitration agreements containing class and collective action waivers, even in situations where the agreements allow employees to opt out of, or into, the waiver. The NLRB continues to hold firm that these types of waivers violate the National Labor Relations Act (“NLRA”) because they infringe upon the employees’ protected right to engage in concerted activity—despite the U.S. Supreme Court’s continued favoring of class action waivers, see, e.g., DirecTV, Inc. v. Imburgia, 577 U.S. __, 135 S. Ct. 1547 (2015), and the Fifth Circuit’s express rejection of the NLRB’s position in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), and in Murphy Oil USA, Inc. v. NLRB, No. 14-60800, 2015 U.S. App. LEXIS 18673 (5th Cir. Oct. 26, 2015).

As many in the employer community are aware, late last month the United Auto Workers won the right to represent a group of maintenance employees working at Volkswagen’s auto manufacturing plant in Chattanooga, Tennessee. The union, which lost handily in an earlier bid to represent the entire plant, had asked the NLRB to sanction another election, but in a “micro-unit” of only the maintenance employees. To the surprise of many, the Board Regional Director handling the case granted the union’s request. In his view, the micro-unit was allowable under the Board’s controversial Specialty Healthcare standard.

In 2015 the National Labor Relations Board (the “Board”) issued two opinions, Cook Inlet Tug & Barge, Inc. and Buchanan Marine, L.P., each finding that tugboat captains did not qualify as “supervisors” for the purposes of the National Labor Relations Act (the “Act”). These decisions demonstrate a trend in recent Board decisions narrowing the definition of a supervisor.

Under Section 2(11) of the Act, a supervisor must have the authority to perform one of several enumerated functions, including “assigning” or “responsibly directing” employees, using “independent judgment” in the interest of the employer. In 2006, the Board issued three decisions defining these terms. Oakwood Healthcare, 348 NLRB No. 37 (2006); Croft Metals, Inc., 348 NLRB No. 38 (2006); Golden Crest Healthcare Center, 348 NLRB No. 39 (2006).

On December 24, 2015, the National Labor Relations Board (“NLRB” or the “Board”) held that rules in Whole Foods’ General Information Guide prohibiting unapproved tape and video recording in the workplace violate Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”).

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees’ exercise of their Section 7 rights, including the right to engage in protected concerted activity. If the rule in question explicitly restricts activity protected by Section 7, it is automatically unlawful; if it does not, the rule violates Section 8(a)(1) only if: (1) the employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule was applied to restrict the exercise of Section 7 rights.

In Danbury Hospital (Case 01-RC-153086), after an initial election victory for the employer, an NLRB Regional Director ordered a second election as a result of the employer’s non-compliance with the new ambush election rules. In doing so, the NLRB again demonstrates why employers should be vigilant and proactive in preparing for an election long before the arrival of a union petition.

Under the new rules, employers must, within two business days after the approval of an election agreement or the issuance of a Direction of Election, submit a voter list of employees’ “available” personal email addresses and personal cell phone numbers. These requirements differ from the old election rules in that previously, the employer was only required to provide a voter list of the employees’ full names and home addresses within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

This week, the EEOC announced that an Illinois-based packing company, Pactiv LLC, agreed to pay $1.7 million to resolve a charge alleging that the company discriminated against employees who needed time off from work for medical reasons.

According to the EEOC, the company maintained a nationwide policy that assessed “attendance points” to employees who needed time off for medical reasons. The company also allegedly failed to provide employees with intermittent and extended leave as a “reasonable accommodation” under the Americans with Disabilities Act.

The Department of Labor is increasingly focused on identifying and pursuing claims of systemic discrimination, both in EEOC charge investigations and OFCCP audits. In this type of claim, the government challenges a policy or practice that (allegedly) disadvantages an entire group of protected employees. These claims are dangerous for employers because they can cover hundreds of work locations and thousands of employees. Employers often unwittingly set themselves up for these claims, by failing to recognize the implications of a seemingly routine information request.

This ...

Hunton & Williams is pleased to bring together industry experts in technology and procurement to host our next IT/Procurement Leadership Forum in Richmond. Join us as we discuss some of the most pressing legal and business issues facing customers in the technology and procurement space.

This forum will provide guidance on a number of key topics, including autonomics and robotic process automation, the legal implications of the National Labor Relations Board’s new joint employer decision, and software audits and IT contracting best practices. These forums are designed to ...

On October 19, 2015, the Judges Division of the NLRB updated its 2010 ALJ Bench Book by issuing a new 2015 edition. The Bench Book serves as a procedural and evidentiary reference for ALJs and litigants during and in preparation for NLRB trials. As such, the Bench Book, and the precedent and authorities within, are often cited to throughout the course of litigation at an NLRB trial.

As we have reported in this space, the National Labor Relations Board (“Board”) made waves several weeks ago with its highly controversial new test for determining if an entity is a “joint employer” of another entity’s employees. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). The Board has wasted no time in seeking to extend its new test to the health care industry.

New York’s fast food workers won a major victory last month when the state’s Wage Board voted to recommend a substantial increase in their minimum wage.

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President Obama signed an Executive Order on Monday, September 7, requiring federal contractors to provide paid sick leave to their employees, effective January 1, 2017.  The Order  requires federal contractors and their subcontractors to let employees earn at least one hour of paid sick leave for every 30 hours worked, up to 56 hours, or 7 days, of leave.

On September 10, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a Final Rule implementing last year’s Executive Order 13665, which prohibits federal contractors from discharging, or discriminating against, any employee or applicant who “has inquired about, discussed, or disclosed” either their own compensation information or that of another employee or applicant.

A recent ruling from the National Labor Relations Board (NLRB) has broadened the standard for assessing joint-employer status under the National Labor Relations Act (NLRA).

A recent ruling from the National Labor Relations Board (NLRB) has broadened the standard for assessing joint-employer status under the National Labor Relations Act (NLRA).

In a ruling that redefines the concept of employment in the United States, the National Labor Relations Board yesterday issued its much-anticipated decision in Browning-Ferris Industries of California, Inc. d/b/a Newby Island Recyclery, 362 NLRB No. 186 (2015). The decision rewrites and drastically expands the definition of who is a “joint employer” under the National Labor Relations Act. The business community has been bracing for this decision for several months, and now that it has been released, the Board’s new standard is likely to create a host of labor relations ...

Reprinted with permission of Nation’s Restaurant News

In a long-awaited ruling, the National Labor Relations Board on Thursday upheld a controversial shift in the standard for determining “joint employer” status in a closely watched case that is expected to reverberate through the franchising world.

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In a ruling that redefines the concept of employment in the United States, the National Labor Relations Board yesterday issued its much-anticipated decision in Browning-Ferris Industries of California, Inc. d/b/a Newby Island Recyclery, 362 NLRB No. 186 (2015). The decision rewrites and drastically expands the definition of who is a “joint employer” under the National Labor Relations Act. Businesses have been bracing for this decision for several months, and now that it has been released, it appears their worst fears have been realized.

On August 17, the NLRB declined to assert jurisdiction over Northwestern University’s scholarship football players, holding that doing so “would not serve to promote stability in labor relations.” The Board dismissed the election petition filed by the Steelworkers-backed “College Athletes Players Association” (CAPA) and directed that the ballots (which were uncounted and had been impounded) be destroyed. Although the outcome obviously pleased Northwestern (and the Big Ten, other bowl subdivision conferences and the NCAA), the Board’s opinion leaves key questions unanswered. Among these are whether college scholarship football players should be deemed employees; why the NLRB took the case in the first place given its view that it would be nearly impossible to effectively regulate labor relations in the Big Ten; and why CAPA targeted Northwestern. A summary of key rulings and some observations follow below.

On July 29, 2015, the U.S. District Court for the District of Columbia held that the National Labor Relations Board (“NLRB”) had authority to adopt its new “ambush election” rules. These new rules, which became effective on April 14, 2015, made dramatic changes to the NLRB’s traditional rules governing union representation elections. The rules shortened the length of representation elections from approximately 40 days to as short as 11 days. In addition, the rule prevents employers from legally challenging an election until after its workers have voted. Business groups across the country have now begun the process of challenging these rules in federal courts. As we previously reported, the U.S. District Court for the Western District of Texas has already dismissed one set of petitioners’ challenges and upheld the ambush election rules. However, on August 10, the petitioners filed an appeal asking the Fifth Circuit to overturn the decision.

In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases.

More and more employers are faced with the following question -- can a transgender employee use the restroom associated with his or her gender identity? According to federal governmental agencies, the answer seems to be yes.

In American Baptist Homes of the West d/b/a Piedmont Gardens (“Piedmont Gardens”), 362 NLRB 139 (June 26, 2015), the NLRB overruled longstanding precedent protecting the confidentiality of employee witness statements and adopted a new rule that balances the union’s need for the witness statement with the employer’s “legitimate and substantial confidentiality interests.” Since 1978, employee witness statements received by employers have been automatically exempt from disclosure to unions, no matter the circumstances. Now, as a result of Piedmont Gardens, an employer who cannot establish that it has a legitimate confidentiality interest that outweighs the union’s interest must disclose witness statements to the union in full. This will likely force employers to change the way they conduct investigations.

On April 14, the National Labor Relations Board changed its rules for processing union elections. The new rules stack the deck against employers by decreasing the time between the filing of a petition and the election, which means that an employer now has less time to educate its employees about the potential impacts of unionization. The new rules also add procedural requirements that employers must address, which can distract the employer from the more important task of running its campaign. Given the significant changes, many have questioned whether it is possible to win an ...

On July 6, 2015, the National Labor Relations Board invited interested parties and amici to submit briefs in Miller & Anderson, Inc., 05-RC-079249, in connection with the Board’s reexamination of whether temporary employees provided to a company by staffing agencies may be included in the same bargaining unit as the company’s direct employees.  Briefs are due by September 4, 2015.

Recent guidelines have been issued by the Department of Labor in connection with President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673.  Interested parties will have until July 27, 2015 to submit written comments to the Regulatory Secretariat for consideration before the proposals are finalized.

The Supreme Court recently held in EEOC v. Abercrombie & Fitch Stores, Inc. that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even where the applicant has not informed the employer of his need for an accommodation.

As we continue our discussion of the NLRB’s “quickie election” rules that went into effect on April 14, please join Hunton & Williams LLP for a complimentary interactive webinar.

The United States District Court for the Western District of Texas has just denied one of the employer community’s challenges to the NLRB’s ambush election rules.  As covered previously, the Board’s new election rules, which went into effect on April 14, 2015, shorten the potential timeline for elections to be held 11 to 12 days after a union representation petition has been filed.  Several business groups have challenged the validity of the ambush rules in the federal courts. 

The Supreme Court’s decision in Mach Mining, LLC v. EEOC provides for judicial review with respect to the EEOC’s conciliation efforts in claims of unlawful discrimination against an employer. In Mach Mining, the EEOC filed suit against Mach Mining, LLC on the basis of sex discrimination, specifically, with regard to Mach Mining’s hiring practices. After the EEOC determined that reasonable cause existed as to Mach Mining’s unlawful hiring practices, the EEOC sent a letter to Mach Mining inviting the employer to participate in an informal conciliation proceeding with the plaintiff to attempt to rectify the charge. In its letter, the EEOC notified Mach Mining that an EEOC representative would be contacting the respondent in order to begin the informal conciliation process regarding the charge. Roughly a year later, the EEOC sent a second letter to Mach Mining, stating it had determined that conciliation efforts had been unsuccessful.  The EEOC then filed suit in federal court.

Under the National Labor Relations Act (“Act”), employers usually may not discipline employees for engaging in certain collective or concerted activity, including comments regarding terms and conditions of employment, unless the employee’s behavior is so outrageous that it loses the protection of the Act.  But how far can employees push the boundary before their conduct will be found indefensible?

As expected, the implementation of the NLRB’s ambush election rules has spurred unions to initiate organizing campaigns across the country.  As discussed in our previous posts and a webinar hosted by the Firm, the new rules make it easier for unions to organize employees through an expedited election process, and makes it possible for elections to be held 11 to 12 days after the petition has been filed.  Recently released data confirms that a significant increase in petition filings occurred after the April 14, 2015 implementation date of the new ambush rules.  To summarize, an average of approximately 42 petitions were filed per week for the month of March to April 13th.  From April 13th to the beginning of May, the average number of petitions filed per week shot up to approximately 60.  Such averages are deceptive, however, in that the number of petitions filed per week has increased every week since the implementation date, rising to nearly 80 petitions filed for the last week of April.

Federal agencies need not go through the formal and drawn-out “notice-and-comment” process when altering an interpretation of a regulation.  In a unanimous decision, the Supreme Court in Perez v. Mortgage Bankers Association stated that the Administrative Procedure Act (the “APA”) does not mandate notice-and-comment rulemaking for interpretive rules.  In doing so, the Supreme Court overturned the doctrine established by the D.C. Circuit’s 1997 decision, Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), which had held that an agency must use the APA’s notice-and-comment procedures prior to issuing a new interpretation of a regulation that deviates significantly from a definitive interpretation the agency had previously adopted.  In Perez, the Supreme Court addressed the question of whether the Paralyzed Veterans doctrine was consistent with the APA, ultimately finding that it was not. 

If your company did NOT attend our recent webinar concerning the new Ambush Union Election rules, then please READ ON: