Labor & Employment Developments Blog

NLRB axes Lutheran Heritage Standard

In a 3-2 decision, the NLRB overruled its prior decision regarding how it analyzes whether a facially neutral workplace rule, policy or employee handbook provision interferes with the exercise of rights protected by the National Labor Relations Act (“NLRA”).

Recently, many health care employers and other large corporations have implemented programs requiring their employees to get a flu vaccination. Some legal experts have suggested that these mandates may be problematic for employers.  Specifically, employers may face religious based objections under Title VII of the Civil Rights Act of 1964, or disability based objections under the Americans with Disabilities Act.  According to the U.S. Equal Employment Opportunity Commission, it has filed lawsuits in recent years against employers under Title VII where employees were fired for objecting to a vaccination for sincere religious beliefs.  The EEOC has also stated that a company would likely violate the ADA, if it were to take adverse action against an employee who refused to get a flu vaccination for a disability related reason, such as an allergic reaction to the vaccine.

The new term of the Supreme Court began last Monday, October 2, and the first case up has the potential to affect millions of employers and employees across the country. The case, Epic Systems Corp v. Lewis (which was consolidated with two other cases, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA) examines whether employment agreements requiring employers and employees to resolve employment-related disputes through individual arbitration and waive class and collective proceedings are enforceable under the Federal Arbitration Act (FAA), notwithstanding the provisions of the National Labor Relations Act (NLRA).

In a memo issued last Wednesday, October 4, 2017, Attorney General Jeff Sessions announced that the Department of Justice will no longer take the position that Title VII of the Civil Rights Act of 1964 encompasses discrimination based on gender identity per se, including transgender status.  This reverses the position of the DOJ that was announced by then-Attorney General Eric Holder in 2014 under the Obama Administration. 

On Tuesday, the Seventh Circuit sitting en banc announced its decision in Hively v. Ivy Tech Community College of Indiana, creating a circuit split and setting the stage for a potential Supreme Court battle over the scope of Title VII.

The annual NCAA Basketball Tournament, a/k/a March Madness, starts today. More on that below but there is another kind of “March” for employers to be concerned about.

As anticipated, the Department of Labor’s (DOL) final overtime rules were issued on May 18, 2016. Effective December 1, 2016, these new regulations will impact all companies with salaried employees earning less than $47,476 annually. KMK will be offering training sessions to assist our clients in developing effective strategies to implement the new overtime rules. 

This week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released a finalized recordkeeping rule that becomes effective January 1, 2017.  Under the final rule, certain employers are required to electronically submit data regarding work-related injuries and illnesses.  Impacted employers are already required to collect and record this data under OSHA regulations.  However, now, this employer injury and illness data will be public.  Once OSHA removes personal identifying information of employees, the data will be posted on OSHA’s website.

The Second Circuit’s decision to reinstate the NFL’s four game suspension of Tom Brady has been in the news this week. To those of us who handle arbitration on a regular basis, it came as no surprise. However, employers who arbitrate cases pursuant to a collective bargaining agreement, or who have or are considering arbitration programs, should not be overly concerned.   

One of the most common requests that I receive as an employment attorney is to review severance offers.  I’ve had these kinds of requests from friends, relatives, acquaintances and (on rare occasions) clients and I seldom turn them down. I have probably handled hundreds of reductions in force for various corporate clients so I like to see how others handle them.  In the past month, I have reviewed two severances packages and both failed to follow the requirements of the Older Workers’ Benefit Protection Act (“OWBPA”).  I was not at all surprised.  If I had to guess, I would say that over 50% of the severance offers I’ve reviewed over the years are not in compliance with the OWBPA.