Labor & Employment Law Updates
U.S. Immigration and Customs Enforcement (“ICE”) is in the midst of a nationwide surge in employer I-9 audits, making good on the agency’s previous pledges to step up workforce enforcement efforts and “create a culture of compliance among employers.”
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The Eleventh Circuit Court of Appeals upheld the dismissal of a Florida truck driver’s religious discrimination lawsuit against his former employer. In Walker v. Indian River Transport Co., a food transportation company assigned a Jehovah’s Witness employee a difficult route that required a flexible schedule and availability to work on Sundays. The driver requested Sundays off to attend religious services, and his employer accommodated the request by pulling him off the difficult route (which required availability to work on Sundays) and offering him alternative but lower-paying routes that did not require Sunday driving. The driver was disappointed with the offer and eventually quit.
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A bipartisan group of U.S. lawmakers have introduced House and Senate bills that seek to further deter workplace sexual harassment by: (1) banning non-disclosure and non-disparagement clauses in employment contracts, and limiting the use of such clauses in settlement agreements; (2) requiring public companies to provide annual reports to the Securities and Exchange Commission disclosing details about workforce harassment settlements and judgments; and (3) establishing a confidential tip line for employees to report harassment to the Equal Employment Opportunity Commission.
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An employee who posted a damning, but stolen, document on Facebook lost the protections of the National Labor Relations Act, under an Advice Memorandum issued by the National Labor Relations Board’s (“NLRB”) Division of Advice.
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A federal appeals court held that In-N-Out Burger violated the National Labor Relations Act (“NLRA”) when it instructed employees not to wear “Fight for $15” buttons on their uniforms. The National Labor Relations Board (“NLRB”) and federal courts have long held that employees have the right to wear buttons, pins, and stickers that relate to the terms and conditions of their employment and unionization, except under “special circumstances.” Special circumstances may exist when allowing employees to display such items would: (1) jeopardize employee safety; (2) damage machinery or projects; (3) exacerbate employee dissention; or (4) unreasonably interfere with a public image that the employer has established through appearance rules of its employees.
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A federal district court in Illinois ruled that Jimmy John’s Franchise, LLC (“Jimmy John’s”) is not a joint employer of its franchisees’ employees.
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This week, the U.S. Supreme Court ruled that states may not force public sector workers to contribute to labor unions when such workers choose not to join the unions. The 5-4 decision abolishes the so-called “fair share” fees, i.e., the requirement in over two-dozen states that public sector workers who decline to join a union must nevertheless pay a portion of dues to the union.
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The Supreme Court’s highly-awaited decision in the Masterpiece Cakeshop case—which pit anti-discrimination obligations against religious freedoms—has caused some companies to ask how the decision changes their obligations under anti-discrimination laws in the areas of employment and public accommodation. The answer is, the decision does not change employers’ obligations to adhere to federal and state anti-discrimination laws.
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Last week, the National Labor Relations Board’s Office of General Counsel (the NLRB’s “G.C.”) provided clarity as to what facially neutral employment handbook rules will be considered lawful under the NLRB’s updated Boeing Company test.
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This week, Colorado Governor John Hickenlooper signed an Executive Order creating a joint task force to address worker classification and payroll fraud in the construction industry. The task force will consist of seven members of business associations and labor groups, appointed by the Governor, and will be charged with assessing current agency practices regarding misclassification, fostering information-sharing between agencies, facilitating complaints, identifying violators, and proposing administrative changes.
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Last week, Colorado Gov. John Hickenlooper signed a bill re-authorizing both the Colorado Civil Rights Division (“CCRD”), which is the Colorado agency charged with enforcing the state’s anti-discrimination laws in the areas of employment, housing, and public accommodations; and the Colorado Civil Rights Commission (“Commission”), which is a seven-person board that develops policies and conducts hearings regarding alleged discrimination. The legislative action, which ended months of “trench warfare” on the issue, ensures that the CCRD will receive funding and continue operations.
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The Supreme Court ruled this week that class-action waivers in arbitration agreements are lawful. The much-anticipated Epic Systems Corp. v. Lewis decision provides clarity to employers nationwide, who previously were required to navigate a patchwork of various state, federal, and agency rules concerning the use of class-action waivers in employment arbitration agreements.
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An employer may refuse to accommodate a request for reduced hours from an employee with a disability where overtime is an essential function of the job, the Eighth Circuit Court of Appeals recently held.
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Two bills with potentially wide-reaching effects on Colorado employers did not survive the recently-closed legislative session.
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This week, the California Supreme Court made it more difficult for many employers to lawfully classify workers as independent contractors under California wage-and-hour law.
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In the wake of the #MeToo environment, legislators in several states and in Congress have taken aim at arbitration agreements as they apply to claims of sexual harassment in the workplace. Additionally, all 56 attorneys general recently sent a letter to Congress asking it to prevent employers from requiring that sexual harassment claims be resolved through arbitration.
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A National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) held that an employer’s “confidential information” rule prohibited employees from discussing wages, and therefore violated Section 7 of the National Labor Relations Act (“NLRA”).
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The Ninth Circuit Court of Appeals ruled this week that employers may not justify pay differences between women and men by relying on prior salary. The Rizo v. Yovino decision concerned the Equal Pay Act, which prohibits employers from paying male and female employees different wages for substantially equal work, unless the wage difference is the result of (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based on “any factor other than sex.”
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This week, the United States Supreme Court issued a much-anticipated decision regarding whether service advisors working at a car dealership were exempt from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”). In a 5-4 decision, the Court in Encino Motorcars, LLC v. Navarro ruled that service advisors are exempt from overtime pay requirements under the “salesman, partsman, or mechanic” exemption to the FLSA, and thus rejected the Department of Labor’s Obama-era interpretation of that exemption. In making this decision, the Court rejected the long-standing “narrow construction” principle that the FLSA’s exemptions should be interpreted narrowly, ruling instead that such exemptions should be given a “fair reading.”
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Pervez Rashid, a Muslim of Pakistani descent and manager of Washington Metropolitan Area Transit Authority (“WMATA”), received satisfactory performance reviews under a prior manager. Rashid received a new manager, his job title and duties changed and his performance decreased, resulting in WMATA firing him. Rashid sued for religious discrimination, but lost because, although he satisfactorily performed under the prior manager (an argument Rashid made), “when a district court evaluates the question of whether an employee was meeting an employer’s legitimate employment expectations, the issue is not the employee’s past performance but whether the employee was performing well at the time of [his] termination.”
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