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02/08/2019

The Top 16 Labor And Employment Law Stories

Source: Fisher Phillips, On the Front Lines (No. 2, February 2019)

It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

In fact, there were so many significant developments taking place during the past month that we were once again forced to expand our monthly summary well beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 16 stories from last month that all employers need to know about:

  1. Labor Board Makes It Harder For Employees To Claim Their Complaints Are Protected – In a 3-1 ruling that should be hailed by employers across the country, the National Labor Relations Board just made it harder for employees to successfully claim that their workplace gripes constitute protected concerted activity. The January 11 decision (Alstate Maintenance, LLC) reverses a 2011 Obama-era decision that was widely derided as tilting the playing field too far in favor of employees. Under that precedent, essentially any employee complaint made to management in the presence of coworkers was sufficient to qualify as protected concerted activity under the National Labor Relations Act (NLRA). Under Alstate Maintenance, however, the NLRB has returned to the more stringent standard whereby only those complaints that seek to initiate group action, or that involve truly “group” complaints, will be considered protected concerted activity (read more here).
  2. Longest Government Shutdown In History Impacted Workplace Law – As of January 12, the federal government shutdown became the longest in our nation’s history—and employers felt the sting. While the peculiarities of the federal budget process meant that this shutdown started out by not hitting the nation’s employers as hard as prior shutdown events, the lingering nature of the event eventually started to take its toll. Read on to get a better understanding of how employers were impacted (read more here).
  3. Labor Board Makes It Easier To Classify Workers As Independent Contractors – In a significant ruling which will benefit companies, the National Labor Relations Board revised the test it uses for determining whether workers are employees or independent contractors by making it easier for entities to classify them as contractors (SuperShuttle DFW, Inc.). The January 25 decision throws a roadblock into unionization efforts involving such workers, as federal law does not permit independent contractors to unionize or join forces with employees in organizing efforts. What do employers need to know about this development? (read more here)
  4. Salary Increase On Its Way? Proposed “Overtime” Rule Reportedly Headed To White House – The U.S. Department of Labor is moving closer to releasing is proposed changes to the white-collar exemptions, otherwise known as the infamous so-called “Overtime Rule.” The USDOL reportedly submitted a proposed rule for review by the federal Office of Management and Budget (OMB) on or about January 10. Neither the OMB nor the USDOL have elaborated upon what this proposal actually says. Although there has been no announcement of how long the OMB’s evaluation will take, the agency commonly completes its assessment within no more than 90 days. If the OMB approves the submission for publication, then history suggests that the USDOL will probably release the proposal for a public-comment period of 60 days. This is on target with the agency’s regulatory agenda, which anticipated that the proposed overtime rule would be released in March 2019 (read more here).
  5. Grounded! Supreme Court Rejects Lower Courts’ Ability To Axe Arbitration Agreements – In a unanimous opinion issued on January 8, the United States Supreme Court continued its expansive reading of the Federal Arbitration Act and arbitration provisions, rebuffing an effort by some to erect an additional hurdle that would interfere with an employers’ ability to enforce arbitration agreements (Henry Schein Inc. v. Archer and White Sales Inc.). By rejecting the “wholly groundless” exception that courts had used to “spot-check” whether a claim of arbitrability was plausible before compelling arbitration, all lower federal courts must now compel arbitration in all cases where the parties have agreed to delegate the issue of “who decides what is arbitrable” to an arbitrator. The Court’s decision—the first authored by Justice Brett Kavanaugh—extinguishes a conflict among various circuit courts of appeal and provides uniform guidance to employers who use arbitration agreements throughout the country. Employers should familiarize themselves with the ruling in order to ensure that their dispute resolution plans are fully compliant and in line with the decision (read more here).

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