D.C. Circuit Says NLRB Must Explain Its Decision-Making

Court Remands NLRB Decision for Failing to Distinguish Contrary Precedent

A shift in the political party at the White House generally means a corresponding shift in philosophy for the National Labor Relations Board (NLRB). Naturally then, the question many employers are asking is not “Will the NLRB swing to a pro-labor position?” but “How far will the pro-labor pendulum go?” Mercurial NLRB policy is, after all, nothing new. The agency’s five-member decision-making panel is typically comprised of three members aligned with the president’s political party. Following four years under a pro-business administration, employers are now bracing for the inevitable flip back under a president who has already pledged to be the “strongest labor president … ever.”

However, the D.C. Circuit’s decision in Davidson Hotel Co. v. NLRB offers some solace for employers fearing the Biden blues. In that case, the D.C. Circuit refused to enforce the NLRB’s bargaining unit determination because the agency failed to adequately distinguish relevant precedent cited by the employer. The decision serves as a strong reminder to the NLRB that it cannot ignore its own established precedent when rendering a decision, and that it must explain itself when departing from precedent that is contrary to its decision. Just because the board may disagree with its predecessors does not mean they can pretend their decisions did not exist. Continue Reading

New Administration’s Revamping of Labor Department’s OFCCP Signals New Considerations and Implications for Federal Contractors

In his first week in office, President Joe Biden revamped the U.S. Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) and immediately signaled more aggressive enforcement of anti-discriminatory hiring and pay practices than that of the prior administration. Along with signing the “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,”[1] making it the policy of his administration that “the Federal Government should pursue a comprehensive approach to advancing equity for all,” Biden appointed former Equal Employment Opportunity Commission (EEOC) Chair Jenny Yang to serve as director of the OFCCP. That selection, in addition to promises made during his campaign, suggest that there will be increased pressure on federal contractors to abide by anti-discrimination regulations, including those dealing with pay equity. Continue Reading

Mayor Bowser Signs Broad DC Noncompete Ban – Certain Requirements Apply to Employers That ‘Don’t’ Utilize Noncompete Agreements!

As we reported here last month, on Dec. 15, 2020, a unanimous District of Columbia City Council approved a broad ban on noncompete agreements and “moonlighting” policies that would be among the most restrictive in the nation. On Jan. 11, 2021, Mayor Muriel Bowser signed and approved the Ban on Non-Compete Agreements Amendment Act of 2020. It now will be referred to Congress, where the legislature can disapprove the law within 30 days of the referral, although this is not expected.

Given the strong likelihood that the law will soon be in effect (likely sometime in February), employers in the District should begin preparing for some of the law’s requirements and ensure that any internal policies regarding noncompete agreements are updated to reflect the changing legal landscape. All employers should be cognizant of these requirements, including those employers who do not utilize non-compete agreements. Continue Reading

Florida’s New Form I-9 & E-Verify Requirements

Like many states before it, the State of Florida has enacted new requirements for mandatory use of E-Verify and expanded I-9 documentation requirements for private and public employers. The new law, which went into effect Jan. 1, 2021, requires all Florida employers who do not use the U.S. Department of Homeland Security’s E-Verify system to retain copies of documents new hires provide to verify their identity and work authorization during the Form I-9 employee onboarding process. The law also requires certain employers to use the U.S. Department of Homeland Security’s E-Verify system to confirm employment authorization.

The federal law known as the Immigration Reform and Control Act (IRCA) requires employers to confirm employees are eligible to work in the United States by completing Forms I-9 and reviewing documentation of employees’ identity and employment eligibility. Federal I-9 regulations provide that employers can generally choose whether to retain copies of the supporting documents, with some exceptions for employers that use the voluntary federal E-Verify service. Continue Reading

California Supreme Court Applies Dynamex Independent Contractor Test Retroactively

The California Supreme Court has concluded that the ABC Test it developed for determining whether a worker is an independent contractor or employee applies retroactively.  Therefore, the ABC Test, first developed in the Court’s Dynamex decision, applies to California wage and hour claims implicating a time period prior to issuance of the Dynamex decision on April 30, 2018.

The Court reasoned that retroactive application was appropriate because California generally applies judicial decisions retroactively and no exception was warranted here.  California recognizes an exception to the general rule of retroactivity when considerations of fairness and public policy justify an exception. Continue Reading

Snapshot or Long Exposure? Dep’t Of Labor Approves New IC Test … For Now

This octopus in New Zealand has been trained to take photos of visitors to the Sea Life Aquarium. That’s a pretty neat trick. I’m sure the visitors love it and will pay whatever exorbitant fee the aquarium charges to profit on the back of its cephalopod slave labor, but will the photos last? Do the visitors keep them, or do the pictures end up in the circular file at home?

Some photos are cherished and kept. Others, not so much.

So which category will the Department of Labor’s (DOL) new independent contractor test fall into — cherished and kept? Or not so much?

As reported here, in September 2020, the DOL published a new proposed rule for how to determine independent contractor versus employee status under the Fair Labor Standards Act (FLSA). The DOL has been rushing to publish the new rule before Inauguration Day 2021, in case of a change in the Oval Office. Continue Reading

DC City Council Passes Broad Noncompete Ban

On Dec. 15, 2020, a unanimous District of Columbia City Council approved a broad ban on noncompete agreements and “moonlighting” policies that would be among the most restrictive in the nation. Since adoption of the Defend Trade Secrets Act in 2016, 11 states have enacted legislation regulating the use of noncompetes, including prohibiting them for lower-wage employees, which recently occurred both in nearby Maryland (in 2019) and Virginia (in 2020), but no state has chosen to join California in prohibiting the enforcement of employment-based noncompetes across the board.

Under the approved bill, following its enactment, any “non-compete provision contained in an agreement that was entered into on or after the applicability date … between an employee and an employer shall be void as a matter of law and unenforceable.” Additionally, the law prohibits employers from having a workplace policy that prohibits employees from being “employed by another person,” performing “work or providing services for pay for another person” or operating “the employee’s own business.” Thus, it would appear that the legislation might allow employees to work for their employer’s competitor even while employed by their employer. Continue Reading

Coloradans Vote to Give All Employees in the State Paid Family and Medical Leave

On November 3, 2020, Colorado voters placed their ballots in favor of Proposition 118 – a first-of-its-kind ballot initiative. In passing the Paid Family and Medical Leave Insurance Act (FAMLI), Colorado joined just eight other states and the District of Columbia in creating a state-level paid family and medical leave program. The benefits under FAMLI begin in 2024, with more clarity coming in January 2022. Despite that timeline, we already have some insight into what FAMLI means for Colorado employers and employees.

As its name suggests, FAMLI provides paid leave. This immediately sets it apart from the federal Family and Medical Leave Act (FMLA), which provides only unpaid leave. FAMLI also has greater reach than the FMLA. While the FMLA is applicable to employers with 50 or more employees, FAMLI is effectively applicable to all employers. Any employer with at least one employee falls under the Act. Specifically, FAMLI provides 12 weeks of paid family and medical leave for employees, but that’s not all. It also provides for an additional four weeks of leave in the event of pregnancy or childbirth complications. All told, that is 16 weeks of paid leave. Continue Reading

NYC Earned Safe and Sick Time Amendments Effective September 30, 2020

On September 28, 2020, New York City Mayor Bill de Blasio signed into law a bill (Intro. 2032-A (Cohen)) amending the New York City Earned Safe and Sick Time Act (ESSTA) to align it with the New York State Sick Leave Law (NYSSLL), which went into effect on September 30, 2020. For more information about the NYSSLL, please refer to our client alert. The effective date of the amended ESSTA law is also September 30, but some employers can require that their employees refrain from using any additional paid safe or sick leave until on or after January 1, 2021 Continue Reading

California Expands Family Leave to Employees of Small Employers

California passed a new law expanding family leave rights to employees working for employers with five to 50 employees. The family leave rights were previously limited to employees of employers with more than 50 employees.

Under this new law, employees of small employers would be entitled to up to 12 weeks of unpaid leave during any 12-month period to:

  1. Bond with a new child.
  2. Tend to the employee’s own “serious health condition.”
  3. Care for a child, parent, grandparent, grandchild, sibling, spouse or domestic partner who has a “serious health condition.”
  4. Undergo various duties related to active duty service in the U.S. armed forces by the employee or the employee’s spouse, domestic partner, child or parent.

A “serious health condition” is a physical or mental condition involving either inpatient care or continuing treatment or supervision by a health care provider. An employee qualifies for these rights upon 1,250 hours of service for the employer during the previous 12-month period.

The law takes effect January 1, 2021.

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