Labor & Employment Law Update

If not, it should be.  An open door policy, (essentially a policy through which the employer makes clear to employees that they can and should bring concerns and complaints to human resources or other appropriate managers) may be the difference between substantial legal liability and a relatively prompt resolution of an employee’s lawsuit.  Certain laws, including federal wage and hour and anti-harassment statutes, provide employers at least a partial defense to claims made by employees who refuse to use internal complaint procedures before filing a lawsuit.  Even in the ...

In Fifth Third Bancorp v. Dudenhoeffer, No. 12-751 (June 25, 2014), the Supreme Court overhauled the legal landscape of ERISA “stock drop” litigation. The case was brought by 401(k) plan participants after Fifth Third’s employer matching contributions, made in company stock to an ESOP component of the plan, dropped 74% over a two-year period. Plaintiffs argued that plan fiduciaries breached their duties under ERISA by investing in and maintaining investments in Fifth Third stock in light of the risks associated with the employer’s subprime lending ...

In May 2014, the Department of Homeland Security announced a proposed rule to allow for work authorization for certain spouses of H-1B visa holders. The work permit is called an Employment Authorization Document or EAD. No time frame has yet been finalized for this benefit.

Employment authorization could be extended to H-4 nonimmigrant spouses in the following situations:

(1) The principal H-1B spouse is the beneficiary of an approved 1-140 Immigrant Petition; or

(2) the H-1B nonimmigrant’s period of stay is authorized under sections 106(a) and/or (b) of the American ...

In a recent memorandum, the Office of the General Counsel for the National Labor Relations Board (“NLRB”), informed all regional directors that the NLRB had entered into a program with the Occupational Safety and Health Administration (“OSHA”) and the Wage and Hour Division of the U.S. Department of Labor (“DOL”) whereby NLRB investigators, in certain circumstances, will actively encourage parties that file an unfair labor practice (“ULP”) charge to also file charges or complaints with OSHA and the DOL for potential violations of the Occupational Safety and ...

Employers may be appalled to learn that their standard practice of simply mailing (and emailing) notices and other important correspondence to employees may be insufficient to satisfy their obligations under various employment laws. 

Recently, an appellate court held that a former employee’s claim that she never received individual notice defeated the “Mailbox Rule” presumption, and therefore precluded the employer’s ability to obtain summary judgment in a Family and Medical Leave Act (FMLA) matter.  Lupyan v. Corinthian Colleges Inc., No. 13-1843 (3rd Cir ...

Franchisors across the U.S. may be surprised to learn that the general counsel for the National Labor Relations Board has taken the position that they are likely joint employers with their franchisees under the National Labor Relations Act (NLRA).  The announcement came in the context of finding joint liability for alleged unfair labor practices, but the true impact and purpose is to open the door to unionization of all employees of local franchises as a single bargaining unit of the corporate franchisor.

Since 2012, the NLRB has received 181 complaints from employees of ...

Recently, the U.S. Supreme Court granted certiorari to review a Fourth Circuit opinion holding that an employer did not violate the Pregnancy Discrimination Act (PDA) when it did not offer light duty to a pregnant employee, even though the employer had an established light duty program for certain categories of employees, including those injured on the job. Young v. United Parcel Service, Inc. The following week, the EEOC released enforcement guidance that takes an opposite position to that reached in Young. The guidance was not offered for public comment prior to being ...