Workforce Bulletin

Last week, the National Labor Relations Board (the “Board”) issued a decision that “begins the process of restoring” a decades-old definition of “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”) – a definition that, in the Board’s view, had become muddled and unduly expanded as recent decisions “blurred the distinction between protected group action and unprotected individual action.”

In a 3-1 decision, with Member McFerran dissenting, the Board in Alstate Maintenance, LLC upheld an administrative ...

The New York State Department of Labor (“DOL”) recently issued proposed statewide regulations that would require employers to pay employees “call-in pay” when employers use “on call” scheduling or change employees’ work shifts on short notice. This is not the DOL’s first foray into this area – in November 2017, the DOL released similar proposed regulations but ultimately declined to adopt them. The DOL’s new set of proposed regulations would apply to the vast majority of employers operating in New York, but are of particular interest to New York City retail ...

In the months following Donald Trump’s inauguration, those interested in the National Labor Relations Board (“NLRB” or “Board”) waited anxiously for the new President to fill key positions that would allow the Board to reconsider many of the actions of the past eight years. Over the last six months, the Board has begun to revisit, and overrule, several union-friendly and pro-employee Obama-era Board decisions. The Board’s new General Counsel has also given clear guidance as to where else employers can expect to see his office pursue further changes in how the National ...

What happened?

On January 17, 2018, a federal judge stayed enforcement of New York City’s (“City”) recently-enacted Fast Food Deductions Law (the “Deductions Law”). The order, entered by consent, was entered in a lawsuit challenging the law filed against the City by two leading foodservice advocacy organizations (Restaurant Law Center, et al. v. City of New York, et al., 1:17cv9128).  The stay is currently in place until the earlier of the determination of the parties’ dispositive motions or March 30, 2018.

What is the Fast Food Deductions Law?

The Deductions Law, which ...

This issue of Take 5 encapsulates the incredible breadth of societal changes and challenges facing the entire retail workplace. The topics addressed below reflect a microcosm of the many issues currently facing our overall society, covering growing political activism in the workplace, increasing expectations to accommodate religious beliefs, otherwise outrageous employee speech that may very well enjoy protection under the law, and the ever-increasing requirements for criminal background checks enacted piecemeal by states and cities. These extremely topical subjects ...

On March 21, 2017, the United States Supreme Court ruled that the National Labor Relations Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he continued in that position after President Barack Obama nominated him for a full term as General Counsel.

By a 6 to 2 vote, the Justices affirmed an August 2015 decision by the D.C. Circuit, which found that Solomon improperly served as Acting General Counsel during the almost three-year period between January 2011 and late 2013 while his ...

On February 16, 2017, tens of thousands of individuals across the country stayed home from work as part of the “Day Without Immigrants,” a social activism campaign organized in response to President Donald Trump’s recent executive orders concerning immigration and increased enforcement, deportation actions, and raids by Immigration and Customs Enforcement. The “Day Without Immigrants” action was apparently not coordinated by any centralized organization, but was promoted on social media and by word-of-mouth just days before.

Now, the same groups that organized ...

This week, an activist group calling itself “Strike4Democracy” has called for a day of “coordinated national actions” – purportedly including more than 100 “strike actions” across the country – on February 17, 2017. The group envisions the February 17^th strike as the first in “a series of mass strikes,” including planned mass strikes on March 8 (organized by International Women’s Day and The Women’s March) and May Day, and a general “heightening resistance throughout the summer.” The organizers are encouraging people not to work or shop that day.

On June 20, 2016, the United States Supreme Court granted a request by the National Labor Relations Board (“NLRB” or the “Board”) to review a decision from the D.C. Circuit Court of Appeals, which found that the Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he remained in that position after President Barack Obama nominated him to permanently fill the General Counsel role.

In June 2010, President Obama named Solomon as Acting General Counsel for the Board. Then, just ...

On March 23, 2016, the DOL issued its long-awaited final “persuader rule” (“Final Persuader Rule”), which drastically expands the agency’s prior interpretation of the types of legal and consulting activities that will be subject to the extensive reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act (“LMRDA”). In particular, the Final Persuader Rule seeks to narrow significantly the scope of the so-called “Advice Exemption” to the statute’s reporting requirements. As a result, a wide range of services provided by ...

[caption id="attachment_2472" align="alignright" width="113"] Laura C. Monaco[/caption]

This week, the EEOC filed its first two federal lawsuits that frame allegations of sexual orientation-based harassment and discrimination as claims of unlawful "sex discrimination" under Title VII of the Civil Rights Act of 1964.

In EEOC v. Pallet Companies the EEOC alleges that an employee's night-shift manager harassed her because of her sexual orientation by making repeated offensive comments (sometimes accompanied by sexually suggestive gestures), such as "I want to turn you back ...

The recent decision by the National Labor Relations Board (“NLRB” or the “Board”) in Blommer Chocolate Company of California (PDF) addresses one of the issues left open in the wake of the Board’s earlier ruling in Purple Communications, Inc. – namely, the extent to which an employer may regulate the content of its employees’ emails sent over the workplace email system.  In Purple Communications, the Board concluded that an employee who is permitted to use the employer’s email system for non-work purposes is presumptively permitted to use that email system (during ...