Labor (U.S.)

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On October 26, 2023, the National Labor Relations Board issued a final rule that dramatically lowered the standard for companies to qualify as joint employers. You can read more about the rule here. In short, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more of the rule’s seven enumerated terms or conditions of employment is sufficient to establish joint employment. There is no doubt that implementation of the new rule will drastically expand when companies will be considered joint employers and create additional costs and obstacles for employers.Continue Reading Dueling challenges to NLRB’s new joint employer rule succeed in extending effective date of rule

On October 26, 2023, the National Labor Relations Board issued a final rule to replace and essentially reverse the joint employer test issued under the Trump Administration. The new test drastically lowers the standard for companies to qualify as joint employers, making them responsible for labor violations and saddling them with obligations with respect to union negotiations. The final rule, which rescinds and replaces the prior regulation, is set to take effect on December 26, 2023, on a prospective basis only.

The 2020 rule required that a company have “substantial direct and immediate control” over the “essential terms or conditions” of a worker’s employment in order to be held liable as a joint employer. In a major “about face”, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more terms or conditions of employment is sufficient to establish joint employment. The Board published an “exhaustive list” of seven categories of terms or conditions that it will consider “essential” for purposes of the joint employer inquiry:

  • Wages, benefits, and other compensation;
  • Hours of work and scheduling;
  • Assignment of duties to be performed;
  • Supervision of the performed duties;
  • Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
  • Tenure of the employment, including hiring and discharge; and
  • Working conditions related to the safety and health of employees.

Continue Reading NLRB Issues Final Rule Replacing Joint Employer Test

On September 11, 2023, labor unions and the California restaurant industry reached an agreement that promises to significantly impact the fast-food chains throughout California. This deal involves, among other things, raising the minimum wage for fast food workers to $20 an hour and eliminating an industry-supported referendum scheduled for the 2024 ballot. The deal also…

On August 30, 2023, the U.S. Department of Labor (DOL) proposed a regulatory rule that would raise the minimum salary threshold for employees who are classified as “exempt” under the white collar exemptions to the Fair Labor Standards Act (FLSA) by nearly 55 percent. The proposed rule would also create a new mechanism for subsequent…

On August 2, the National Labor Relations Board issued the Stericycle, Inc. decision, in which it reinstated a modified version of the Board’s pro-employee Lutheran-Heritage standard for scrutinizing employer workplace rules. Under this new standard, a rule or policy is “presumptively unlawful” if it tends to chill employees from engaging in protected conduct under Section…

Over the past several years, a growing number of businesses that utilize delivery drivers have begun installing dashcam and similar surveillance technologies in their vehicles. This is for a host of a reasons, including to protect employee and customer safety, ensure driver efficiency, and monitor vehicle location. In response, the National Labor Relations Board (NLRB…

Last week, the National Labor Relations Board signaled two additional areas in which it intends to pursue its labor-favorable agenda over the remainder of the 2022 year and beyond.

First, on October 31, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum stating her intention to zealously enforce the National Labor Relations Act (the “Act”) with respect to what she has called “intrusive or abusive electronic monitoring and automated management practices.”

Second, on November 3, 2022, the Board issued a proposal to roll back 2020 amendments to its election regulations with respect to so-called blocking charges.

Technology-based monitoring and surveillance

In her October 31 memorandum, the General Counsel expressed concern that “close, constant, surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under the Act.  The General Counsel specifically stated that electronic surveillance and automated systems can limit or prevent employees from engaging in protected activity, including conversations about the terms and conditions of their employment or of unionization.  She also claimed that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace.  This, the General Counsel speculated, “may prevent employees from exercising their Section 7 rights” from engaging in concerted activity anywhere and may lead to retaliation and discrimination on the basis of protected activity.  The memorandum goes on to provide a two-pronged approach towards dealing with these perceived threats to employees’ rights.Continue Reading NLRB aiming to take pro-labor action in the areas of technology-based monitoring and surveillance and blocking charges

Continuing a string of pro-union decisions, the National Labor Relations Board recently overruled a 2019 Board decision and held that employers violate federal law if they fail to transmit membership dues to unions after the expiration of a collective bargaining agreement.

In its 2019 decision in Valley Hospital Medical Center, Inc., 68 NLRB No.

Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.

The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.Continue Reading Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB

Although New York has had an employment-related whistleblower statute for decades, many employers may not have been aware of it. That is because the statute itself – N.Y. Labor Law section 740 – has been fairly limited in its scope and application. Indeed, it has only protected employees who disclose employer activity that violates laws relating to public health and safety or to health care fraud. Disclosures of other unlawful activities have not been protected by section 740.

That will no longer be the case, however, starting next year. Late last month, New York Governor Kathy Hochul signed a bill that will amend and effectively overhaul section 740. The amended law, which is scheduled to take effect on January 26, 2022, drastically expands the breadth and scope of section 740 by making it significantly easier for New York workers to bring a claim, lengthening the statute of limitations, and imposing a notice requirement on employers.

Overview of key updates to section 740

  • Independent contractors can bring claims too: As a starting point, under the amended law, not only will current and former employees be able to assert legal claims against the employer, but so too will independent contractors.
  • Broad expansion of protected activity: Perhaps the most noteworthy aspect of the amendment is how it expands the types of employee activities that are protected under section 740 of the Labor Law.

Previously, section 740 was a narrow statute that primarily barred employers from taking retaliatory action against employees only where the employee had disclosed or threatened to disclose to a supervisor or public body, or had objected to or refused to participate in “an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” The prior version of the law thus required that an actual legal violation have occurred – i.e., an employee’s reasonable belief that a violation had occurred was insufficient – and was intended to curb only activities that posed a substantial and specific danger to public health or safety or that constituted health care fraud.

The amended statute, however, broadly expands this scope of protected activity. Specifically, the law now bars employers from taking retaliatory action where the employee discloses or threatens to disclose to a supervisor or public body, or objects to or refuses to participate in “an activity that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.” The new definition, therefore, essentially protects, and bars employers from retaliating against, workers who report any actual, or reasonably perceived by the employee, violation of any law, rule, regulation, executive order, or judicial or administrative decision, ruling, or order at all, regarding of its subject matter. To say that this is a dramatic expansion of Section 740 would be an understatement.Continue Reading New York enacts sweeping expansion of state’s whistleblower law