Workplace Issues: Latest Need-to-Know Employment Law News

Employee social media use, overtime laws, worker classification rules, workplace discrimination, union bargaining, confidentiality, H1-B visas, noncompetes, and employee handbooks … but a few of the issues in this latest roundup of commentary and analysis from labor and employment attorneys on JD Supra. For your reference:

The NLRB’s Year In Numbers: FY 2012 (Franczek Radelet P.C.):

“Given the NLRB’s recent penchant for overturning precedent and making a lot of waves in the past year, one might predict that the NLRB has effectively drummed up business—but surprisingly, the opposite appears to be true… There was a 3 percent decrease in the total number of cases (24,275) filed with the NLRB for fiscal year 2012, representing a 2.5 percent decrease in unfair labor practice charges (21,629) and a 6 percent decrease in representation cases filed (2,646).” Read on>>

What Do Overtime, Auto Tune And Assault Have In Common? (Warner Norcross & Judd):

“…here is the general rule: If you are not an exempt employee you are supposed to get paid overtime for all hours you work over 40 in a work week. That’s the rule. So when is an employee exempt? … You can bet that the bodyguard was paid a salary, and salaried employees don’t get overtime. Right? WRONG! At least half wrong. You see, under the Fair Labor Standards Act, you generally (there are some limited exceptions) have to be paid on a ‘salaried basis’ to be exempt from overtime, but being paid on a salaried basis alone does not make you exempt from overtime.” Read on>>

New Board Policy Permits Front Pay To Be Included In Settlement Agreements (FordHarrison):

“A recent Memorandum issued by the National Labor Relations Board’s (NLRB) Acting General Counsel Lafe Solomon may reflect a subtle effort by the Board to encourage the recovery of front pay for individuals claiming they were unlawfully fired or disciplined. GC 13-02, issued January 9, 2013, modifies existing policy to permit Board settlements to include front pay instead of requiring such agreements to be set forth in non-Board ‘side letters,’ which was the prior practice.” Read on>>

Sixth Circuit Rules Employers Can Avoid Fiascos Like Romney’s “47%” Recording by Banning Secret Recordings in the Workplace (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“The Sixth Circuit’s ruling in Jones provides Ohio employers (as well as those in other ‘one-party consent’ states) with a tool for deterring secret recordings in the workplace. Such recordings could have a chilling effect on business operations and potentially violate or compromise the organization’s confidentiality policies. Employers who do not already have a written policy prohibiting secret recordings in the workplace should consider adopting one.” Read on>>

“Right to Know” Back On The Table? (Fisher & Phillips LLP):

“[T]he U.S. Labor Department apparently does intend to reinvigorate its so-called ‘Right to Know’ initiative. This vague and ambiguous proposal first surfaced in 2010 but was eventually shelved. USDOL has now announced its intention to conduct a survey ‘to collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification.’” Read on>>

DOL’s Misclassification Initiative Continues (Franczek Radelet P.C.):

“Iowa is the latest State to sign a Memorandum of Understanding and join forces with the U.S. Department of Labor to combat employee misclassification. Although Labor Secretary Solis has announced her resignation, it appears that the Misclassification Initiative that she championed continues, at least for now.” Read on>>

Iowa Joins DOL’s Independent Contractor Enforcement Posse (XpertHR):

“Thirteen other states – California, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington – also have signed a memorandum of understanding with the DOL as part of its Misclassification Initiative… The DOL says it is ‘actively pursuing’ agreements with other states as well.” Read on>>

Disability Claims Against Oakland County Go To Jury (FordHarrison):

“The Sixth Circuit has reversed the decision of a lower court and held that a deaf individual should be permitted to proceed to trial on his claim that a prospective employer discriminated against him on the basis of disability by failing to hire him as a lifeguard. In reviving the Americans with Disabilities Act claim, the Court found that a jury should be permitted to determine whether the individual was otherwise qualified to be a lifeguard, with or without accommodation, that is, whether hearing is an essential function of the job and, if so, whether reasonable accommodations could have been made.” Read on>>

Quick Quiz Answer: Recovering Loans Or Advances (Fisher & Phillips LLP):

“The U.S. Labor Department has long said that, where an employer has made a bona fide loan or wage advance to an employee, the full amount of the principal may be deducted from the employee’s wages, even if this deduction cuts-into the FLSA minimum wages or overtime compensation that would otherwise be required for the workweek.” Read on>>

“The decision is significant in two respects. First, the Sixth Circuit chose not to follow a contrary decision reached by the Federal Circuit Court of Appeals in CSX Corp. v. United States, thereby creating a split in the federal circuits that may ultimately be resolved by the Supreme Court. Second, the Sixth Circuit’s pro-taxpayer decision substantially impacts unemployed workers and businesses that have reduced their workforce in recent years.” Read on>>

NLRB: Use of Social Media Can Be Protected Employee Activity (Ifrah Law):

“The rise of social media has led to the application of old law to new forms of communication. For instance, an effort by the National Labor Relations Board to educate workers on their right to engage in protected concerted activity has left some employers feeling that the NLRB went too far in supporting employees’ rights – particularly their right to post disparaging work-related comments on social media forums without reprisal.” Read on>>

New Pine Ridge Restaurant to Pay $41,000 to Settle EEOC Sexual Harassment and Retaliation Suit (U.S. Equal Employment Opportunity Commission):

“A Merrill, Wis., restaurant will pay $41,000 and furnish other relief under a consent decree entered by the federal court in a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.” Read on>>

It’s Getting Harder to Say Goodbye (Holland & Knight LLP):

“The National Labor Relations Act allows employers, including those in the construction industry, to join together to bargain with a union. This is called ‘multi-employer bargaining.’ But there are specific rules and requirements that an employer must follow in order to remove itself from multi-employer bargaining and avoid being bound by the next collective bargaining agreement negotiated by the multi-employer group. Failure to follow these rules means that an employer will continue to be bound by the contract resulting from multi-employer bargaining — whether it wants to or not.” Read on>>

Sixth Circuit Issues Second Victory to EEOC in Sex Discrimination Case Against Cintas Corp. (U.S. Equal Employment Opportunity Commission):

“The underlying litigation began in 2005 when the EEOC sued Cintas in the U.S. District Court for the Eastern District of Michigan alleging that it discriminated against women in hiring for its services sales representative position in violation of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination. The EEOC sued under § 706 of Title VII, which permits the EEOC to bring a lawsuit in federal court.” Read on>>

EEOC to proceed with class action disability discrimination case against UPS (Barger & Wolen):

“In a ruling that could negatively impact employers, an Illinois federal judge has allowed the Equal Employment Opportunity Commission (‘EEOC’) to proceed with a class action disability discrimination case against United Parcel Service, Inc. (‘UPS’) even though the EEOC has identified only two class members… Judge Dow previously held that the EEOC’s complaint and amended complaint were defective, in part, because they failed to allege adequate factual information. The court changed course unexpectedly.” Read on>>

H-1B Filing Season Is Here (Morgan Lewis):

On April 1, 2013, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for fiscal year 2014, with an employment start date of October 1, 2013. We recommend that all H-1B petitions subject to the FY 2014 cap should be sent to USCIS on March 29 for receipt by USCIS on April 1. Any cap-subject H-1B petitions that are received by USCIS before April 1 will be rejected.” Read on>>

Proposed Maryland Bill Invalidates Noncompetes Against The Unemployed (XpertHR):

“On January 9, 2013, the Maryland Senate introduced Senate Bill 51, which would make a noncompete agreement between an individual and his or her former employer unenforceable when that individual is unemployed and has applied for and is found eligible to receive unemployment insurance benefits.” Read on>>

Deadline Approaches for Gainful Employment Disclosures (Holland & Knight LLP):

“Institutions of higher education that receive Title IV funding must properly disclose certain information concerning course offerings that are or may be considered gainful employment programs by the U.S. Department of Education (DOE). The deadline for making these disclosures is January 31, 2013. Gainful employment programs are those Title IV-eligible offerings aimed at providing students with skills and credentials to assist them in obtaining employment in a recognized occupation.” Read on>>

2013 California Labor & Employment Laws – Part 2 Of 4 (Hartnett, Smith & Paetkau):

“AB 1844, an addition to the California Labor Code, will prohibit employers from requiring or requesting that employees or applicants disclose their user name or password information for any personal social media, or that they divulge any personal social media.” Read on>>

Aerotek Required by Federal Appeals Court to Comply with EEOC Subpoena (U.S. Equal Employment Opportunity Commission):

“The U.S. Equal Employment Opportunity Commission (EEOC) announced today that a federal appeals court ordered Aerotek, Inc., one of the nation’s largest staffing firms, to comply with a subpoena EEOC issued more than three years ago in September 2009. The subpoena seeks information pertaining to charges filed with the agency alleging that Aerotek discriminated against employees in the workplace.” Read on>>

Avoiding Liability Under the Fair Labor Standards Act (Bean, Kinney & Korman, PC):

“The Fair Labor Standards Act (FLSA) establishes requirements regarding the compensation of employees working in the private sector and in federal, state and local government positions. To protect employees, the FLSA prohibits retaliation by employers against employees who complain that their rights have been violated.” Read on>>

Wal-Mart Rolls Out Hiring Plan To Aid Vets (XpertHR):

“Wal-Mart has announced a plan to hire 100,000 veterans over the next five years. Under the program, the nation’s largest retailer pledges to offer a job to any honorably discharged veteran within his or her first 12 months off active duty.” Read on>>

The NLRB Is Looking at Confidentiality, Non-Disclosure, and Non-Disparagement Provisions in Your Agreements (Epstein Becker & Green, P.C.):

“Another decision has been issued by a National Labor Relations Board administrative law judge striking down a non-union employer’s confidentiality and proprietary information and non-disparagement provisions. This decision … represents yet another expansion of the Board’s view as to the types of provisions that the NLRB is likely to find overbroad and unlawful when it comes to confidentiality, the protection of proprietary information, and the protection of a company’s business and reputation though the use and enforcement of non-disparagement provisions.” Read on>>

NLRB Judge Finds Confidentiality And Non-Disparagement Provisions In Employment Agreement Violate NLRA (FordHarrison):

“In analyzing this issue, the ALJ conceded that the ‘line between lawful and unlawful restrictions is very thin and often difficult to discern.’ He concluded, however, that Quicken Loans’ proprietary/confidential information and non-disparagement clauses fell on the wrong side of that line.” Read on>>

Adopting & Revising Employee Handbooks (Hopkins & Carley):

“Many employers have chosen to compile their human resources policies into an Employee Handbook which is provided to all employees at the start of employment. Employee Handbooks, if properly drafted, followed, and updated, provide significant benefits to employers. While some employers choose not to utilize Employee Handbooks, other employers adopt Employee Handbooks that provide them little to no protection or actually create greater risk for the employer. More important than having an Employee Handbook is having one that is accurate and provides the most protection.” Read on>>

‘Dyed’ In The Wool Conservative? The 6th Circuit Weighs In On Political-Affiliation Retaliation Claims (XpertHR):

“In Dye v. Office of the Racing Comm’n, the 6th Circuit Court of Appeals has ruled that individuals alleging retaliation because of their political affiliation need not show that they were actually affiliated with the perceived political party or candidate to be protected against adverse employment actions.” Read on>>

New Year Employer Checklist (Polsinelli Shughart PC):

“The New Year is an appropriate time to conduct an employer checklist of your policies and procedures to help you achieve success. Our Labor and Employment attorneys have chronicled a list of the Top 5 items you should review early in 2013.” Read on>>

EEOC’s New Strategic Enforcement Plan Highlights Emphasis on Systemic Discrimination Cases (Foley Hoag LLP):

“Recently, the U.S. Equal Employment Opportunity Commission (EEOC) adopted a new Strategic Enforcement Plan (SEP) setting forth its priorities and methods of enforcement for the next 4 years. A key focus of the SEP continues to be systemic discrimination cases, in which the EEOC, on its own initiative, investigates an employer’s employment practices across its workforce. The EEOC is de-emphasizing charges of discrimination brought by individual employees in favor of agency-initiated class action-type cases.” Read on>>

Many Companies Placing Emphasis On Cultural Fit Over Qualifications When Hiring New Employees (McNees Wallace & Nurick LLC):

“There are a number of reasons why employers are focusing more and more on cultural fit as a key criterion in hiring. For one, employers are increasingly recognizing the substantial costs associated with training a new employee, which can easily cost tens of thousands of dollars depending on the job and industry. In order to make such an investment, employers want some level of assurance that the employee will mesh well with others within the work environment… There are downsides to placing a special focus on these types of questions in interviews, however.” Read on>>

Monitoring Evolving Changes in the Department of State’s Administration of the J-1 Trainee and Intern Visa Programs (Mintz Levin):

“U.S. companies that offer appropriate internships or traineeships to junior-level foreign employees who come to the U.S. to gain on-the-job training often utilize J-1 exchange visitor visa programs for interns and trainees. This program is administered by the Bureau of Educational and Cultural Affairs (BECA) within the Department of State (DOS)… Over the last few years, a number of specific incidents have occurred that have led DOS to question the good faith of employers that have utilized the J-1 visa category to host interns and trainees.” Read on>>

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