NLRB General Counsel Acknowledges Legal Stumbling Block in Joint Employment Issue, Highlights Priorities

Speaking at a West Virginia University College of Law event last week, National Labor Relations Board General Counsel Richard F. Griffin, Jr. pointed out the pitfalls in his office’s argument that franchisors should be named in unfair labor practice charge complaints as joint employers with their franchisees. In July, Griffin surprised many by announcing that his office intends to name a parent franchisor as a respondent in cases involving alleged unfair labor practices committed by franchisees if a settlement is not reached. This decision caused an uproar in the business community because it would make significant changes to the franchise model. Read the full post here.  (October 29, 2014) 

Political Speech and Activity in the Workplace: The 2014 Midterms are Here

Election season can be a heated time.  In many contexts, this can mean arguments with friends, family, and acquaintances.  It can also mean added tension and disagreement in the workplace.  In some cases, employers may seek to minimize political discussions at work.  In others, employers themselves may try to introduce politics into the workplace.  Regardless of whether an employee may engage in political activity in the workplace, employees may have rights to conduct political activities outside of work, and to take time off from work, where needed, to vote in an election. Read the full ASAP here.  (October 29, 2014) 

IRS Releases 2015 Pension Plan Limits

The Internal Revenue Service recently released a detailed list of pension plan and other retirement-related contribution and compensation limitations for tax year 2015 that were triggered by an increase in the cost-of-living index.  As stated in the release, “[m]any of the pension limitations will change because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment. However, other limitations will remain unchanged for 2015.”  Read the full post here.  (October 28, 2014) 

Seminal Decision Could Make it Harder for Publicly Traded Employers to Defeat Sarbanes-Oxley Whistleblower Claims

Long awaited in Sarbanes-Oxley Act (SOX) whistleblower circles, on October 9, 2014 the U. S. Department of Labor's Administrative Review Board (ARB) issued a split 2-1 panel decision in Fordham v. Fannie Mae, ARB No. 12-061, reversing in part and remanding an administrative law judge's post-hearing dismissal of a former employee's Section 806 whistleblower retaliation claim. The ARB's decision in Fordham is significant because it addresses squarely, and at length, how ALJs and OSHA investigators should apply the separate and two-stage burden of proof required under Section 806 whistleblower retaliation claims. Read the full ASAP here.  (October 27, 2014) 

EEOC Lawsuit Against CVS Pharmacy Challenging Severance Agreements Dismissed

On October 7, 2014, District Judge John Darrah of the North District of Illinois dismissed the Equal Employment Opportunity Commission’s (EEOC) lawsuit against CVS Pharmacy.  While the decision is helpful for employers in that the EEOC did not prevail in its challenge to common provisions included in many standard severance agreements, the decision leaves many questions unanswered regarding the EEOC’s recent enforcement efforts and the appropriate employer response to the EEOC’s actions. Read the full ASAP here.  (October 20, 2014) 

Ebola Concerns – How Should Employers Respond?

The public concern and confusion generated by the third reported diagnosis of Ebola in the U.S. has reached the workplace.  What was once considered just a public health concern has become an employment issue as well. Employees are anxious about individuals who have travelled to and from West Africa, and about the potential for contracting the virus from co-workers, clients, customers, and patients. Discrimination and privacy-related employment laws limit the types of medical examinations and questions employers may ask of their employees and applicants. Meanwhile, the Occupational Safety and Health Administration has taken the position that Ebola is already covered by its Bloodborne Pathogens and Respiratory Protection standard. The Centers for Disease Control (CDC) have issued their own information page on the contagion. Earlier today, the House Energy and Commerce Committee held a hearing to examine the U.S. public health response to the Ebola outbreak. Read the full ASAP here. (October 16, 2014) 

White House Meets With Business Reps on "Fair Pay and Safe Workplaces" Executive Order

The White House held a “listening session” on the Fair Pay and Safe Workplaces Executive Order with major employer association representatives on Friday, October 13, 2014. The Executive action calls on the U.S. Department of Labor DOL to issue regulations that would impose multiple new obligations on federal government contractors. Read the full post here. (October 13, 2014) 

Government's Message to Corporate America — "We Want Your Whistleblowers!"

On September 22, 2014, the Securities and Exchange Commission's (SEC) Office of the Whistleblower announced that it had issued a $30 million bounty payment to a foreign whistleblower.  This award is more than double the amount of any previous payment issued by the Office of the Whistleblower and comes fast on the heels of a $300,000 payment to a whistleblower who worked as a compliance professional.  The magnitude of the $30 million award and the payout to a company’s own compliance advisor underscore a fundamental shift in enforcement strategy among regulatory agencies – a shift from encouraging internal corporate compliance to policing corporate conduct by encouraging employees to report directly to the government. Read the full ASAP here.  (October 13, 2014) 

OSHA Seeks Input on Workplace Chemical Exposure Levels

The Occupational Safety and Health Administration has issued a request for information (RFI) regarding chemical management methods and permissible exposure limits (PELs). According to a notice to be published in the October 10 edition of the Federal Register, the agency is "reviewing its overall approach to managing chemical exposures in the workplace and seeks stakeholder input about more effective and efficient approaches that addresses challenges found with the current regulatory approach." Read the full post here. (October 9, 2014) 

Employers Get Limited Reprieve from Home Care Rule Enforcement

The Department of Labor's Wage and Hour Division (WHD) has announced that it will hold off on bringing enforcement actions against employers for violating the new minimum wage and overtime requirements imposed by the controversial home care regulations that take effect on January 1, 2015.  Issued over a year ago, the WHD rule eliminates the FLSA's minimum wage and overtime exemption for home care workers employed by home care agencies and other companies.  The rule also significantly narrows the exemption for home care workers employed directly by the individuals or families receiving home care services. Read the full post here.  (October 7, 2014) 

Supreme Court to Decide Religious Accommodation Case

The U.S. Supreme Court announced today that it will consider whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” if the individual did not directly and explicitly request an accommodation and the employer did not actually know the individual needed an accommodation. In the case now before the Supreme Court, EEOC v. Abercrombie & Fitch, the U.S. Court of Appeals for the Tenth Circuit held that an employer will not be liable for failing to accommodate an applicant’s religious garb/grooming practice unless the applicant personally and explicitly tells the employer the practice is religious and seeks an accommodation. Read the full post here. (October 2, 2014)

DOL Issues Final Contractor Minimum Wage Rule

The Department of Labor has issued its final rule implementing Executive Order 13658 (E.O.), which establishes a minimum wage of $10.10 per hour for federal construction and service contractor employees.  Generally, the new minimum wage obligations apply to new contracts and replacements for expiring contracts with the federal government that result from solicitations issued on or after January 1, 2015 or to contracts that are awarded outside the solicitation process on or after January 1, 2015. As discussed in a DOL fact sheet, the final rule defines key terms listed in the E.O., provides guidance for contractors on their new obligations, and establishes an enforcement process. Read the full post here. (October 1, 2014)