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Archive for the ‘Employment Law Blog – GA’ Category

NLRB Finally Issues Its Long-Awaited Joint Employer Rule

Posted on: March 3rd, 2020

By: Justin Boron

In a pivotal move that could constrain collective bargaining among multiple businesses, the National Labor Relations Board (“NLRB”) last week issued its final rule for the joint employer test. It is the final step before the rule becomes effective on April 27, 2020.

The NLRB uses the joint employer test to determine whether a business is an “employer” subject to the NLRA.  And it answers the questions of whether a business is required to bargain with a union representing employees that it doesn’t directly employ and whether it can be liable for unfair labor practices that it did not itself apply.

To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. The essential terms of employment include: wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.

The final rule would restore the standard that pre-existed the 2015 Browning-Ferris decision.  Practically, it would allow businesses to organize their contractual relationships with further clarity and would minimize the chance of a business being forced to bargain with a unionized workforce at a partner business with which it has a relationship.  To learn more, check out the NLRB’s fact sheet here. https://tinyurl.com/vfqfxz5.

The Department of Labor also issued its final rule for the “joint employer” analysis, which goes into effect on March 16, 2020.  To learn more about this rule, check out our previous blog post. https://tinyurl.com/r7ez27j.

If you have questions or would like more information, please contact Justin Boron at [email protected].

Federal Court Temporarily Enjoins California’s Ban On Mandatory Arbitration Agreements

Posted on: January 7th, 2020

By: Brad Adler

Employers will recall that California passed a law in October, 2019 (AB 51) that would limit the ability of employers to require mandatory arbitration of certain statutory employment claims as of January 1, 2020.  Specifically, AB 51 provided that employers could no longer require, as a condition of employment, that a job applicant or employee arbitrate any alleged violation of the California Fair Employment and Housing Act or the California Labor Code.  After AB 51 was passed, a coalition of business groups led by the U.S. Chamber of Commerce filed a lawsuit seeking to block AB 51 from taking effect.

On December 30, 2019, Judge Kimberly Mueller of the Eastern District of California granted a temporary restraining order in response to that lawsuit, which effectively blocks AB 51 from going into effect until the Court holds a preliminary injunction hearing on January 10, 2020.  At the January 10 hearing, the Court will decide whether to grant a preliminary injunction that would block implementation of AB 51 until the case is fully resolved.  As a result of the Court’s temporary restraining order, at least as of right now, it still is lawful to continue requiring employees to sign arbitration agreements.  But please be aware that the lawsuit challenging AB 51 is moving quickly so employers with California employees should continue to monitor this lawsuit.

If you have any questions or would like more information, please contact Brad Adler at [email protected].

NLRB Reverses Obama-Era Ruling And Finds That Employers Can Prohibit Use of Company Email for Union Activities

Posted on: January 2nd, 2020

By: Brad Adler

On December 17, 2019, the National Labor Relations Board (NLRB) ruled in Caesars Entertainment that employees have no right under the National Labor Relations Act to use an employer’s email system for union activities, including organizing. This decision reverses a controversial and unprecedented ruling by the NLRB in 2014 (Purple Communications)  that essentially found that employers could not prohibit employees from using the employer’s email system for union activities.

While the scope of any ban on using email for non-work purposes will vary based on the facts of each case, the good news is that the NLRB, as currently constituted, has recognized that an employer fundamentally is in charge of how its equipment, including email system, can be used by employees.  In light of this ruling, we suggest that employers work with their labor and employment counsel to ensure that the language of any current work rules clearly sets out the respective company’s expectations on how work equipment, including email, should be used by employees.

If you have any questions or would like more information, please contact Brad Adler at [email protected].

DOL Releases New Overtime Rule And Increases Minimum Salary To $35,568

Posted on: September 30th, 2019

By: Brad Adler

On Tuesday, September 24, 2019, the U.S. Department of Labor released its long-awaited new minimum salary threshold for the Fair Labor Standards Act’s white collar exemptions (i.e., executive, administrative and professional exemptions).  Under the new rule, which is set to take effect on January 1, 2020, the DOL has set the minimum salary threshold at $684 per week, or $35,568 per year (up from $23,660).  The DOL anticipates that the updated threshold will expand overtime pay obligations to an estimated 1.3 million additional workers.

Commenting on the new rule, acting U.S. Secretary of Labor Patrick Pizzella stated: “For the first time in over 15 years, America’s workers will have an update to overtime regulations that will put overtime pay into the pockets of more than a million working Americans. . .This rule brings a commonsense approach that offers consistency and certainty for employers as well as clarity and prosperity for American workers.”

Here are the highlights of the new rule:

  • The minimum salary threshold will be $684 per week, which equates to $35,568 per year.
  • Employers will still be able to use a nondiscretionary bonus, incentive pay or commissions to satisfy up to 10% of the standard salary level for the white collar exemptions (and the highly compensation exemption)
    • A one-time “catch-up” payment of up to 10% of the total standard salary level may be made within one pay period falling at the end of the 52-week pay period for those employees who have not earned enough to maintain their exempt status.
  • The highly compensated employee exemption’s additional total annual compensation requirement will increase to $107,432 per year.
  • The new rule did not make any changes to the duties test of the white collar exemptions
  • There are no automatic increases included within this new rule

Finally, while it seems inevitable that employee advocate groups are going to challenge the threshold, which they wanted to see much higher, we still believe it makes sense for employers to prepare for this new rule now.  As a part of their preparation, employers should be assessing whether they have employees they are classifying as exempt, but are making less than the new $35,568 requirement.  If so, employers need to decide whether to increase the employee’s salary, convert the employee to a non-exempt employee paid on an hourly basis or consider use of the fluctuating workweek method.

Please reach out to Brad Adler (Chair of FMG’s National Labor & Employment Practice Group) at [email protected] if you have any questions or need any assistance in navigating the new overtime rule.

EEO-1 Portal for Pay and Hours Data to Open July 15, 2019

Posted on: July 2nd, 2019

By: Brent Bean

The EEOC reported last week that its Portal for receiving Component 2 information, employee pay and hours worked data, will open on July 15, 2019. The deadline for submission of this information by covered entities is September 30 of this year. Companies with 100 or more employees, along with federal contractors who employ 50 or more employees, are covered and are required to submit to the EEOC annual Employer Information Reports, so-called EEO-1 reports. These reports disclose information concerning the number of employees a company employs broken down by job category, race, sex, and ethnicity, known as Component 1 information. Following a recent ruling in National Women’s Law Center v. Office of Management and Budget, 2019 U.S. Dist. LEXIS 33828 (D.D.C. Mar. 4, 2019), the Commission will now begin collecting pay and hours worked data, Component 2 information.

FMG will keep you updated on activity by the Commission and the Courts.  Employers should prepare now with a thorough review of their pay structures in order to identify not only any disparities that may draw increased scrutiny, but also to discern the legitimate, non-discriminatory reasons which exist for their present pay practices. Again, the deadline for submission of Component 2 information is September 30.

If you have any questions or would like more information, please contact Brent Bean in the Labor & Employment Practice Section at [email protected].