Labor & Employment Law Update

Union job targeting programs, also known as “market recovery funds,” are used by unions to provide a bidding advantage to union contractors. As part of these programs, unions collect voluntary deductions from members’ wages, which are then used to subsidize union contractors’ bids on building projects. With the union subsidy, the union contractor is able to successfully bid on projects that may otherwise go to nonunion contractors. The subsidy further allows employees to be paid at union scale, rather than the lower wages set forth in the contractor’s bid. These ...

On September 10^th, the Office of Federal Contract Compliance Programs (“OFCCP”), a division of the US Department of Labor, published the final rule to implement Executive Order 13665, which prohibits federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant. The rule allows these individuals to file a discrimination complaint with OFCCP if they believe that their employer fired or otherwise discriminated against them for ...

Under the Family Medical Leave Act (“FMLA”) employees do not have to expressly say they need “FMLA” or otherwise invoke any of its provisions when requesting leave that would qualify under the FMLA. As such, employers have to be vigilant and question whether an employee’s request or need for leave qualifies for FMLA leave.

However, employers should know that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir ...

On September 4, a Federal Appeals Court upheld a National Labor Relations Board (NLRB) decision finding management comments to employees during the early stages of a union organizing campaign unlawful. Section 8(a)(1) of the National Labor Relations Act makes it unlawful “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 rights include “the right to self-organization, to form, join, or assist labor organizations.” The NLRB and the Courts interpret this language broadly.

Back in 2011 rumors about a possible ...

H-1B employee mobility makes USCIS uncomfortable.

In fact, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) set a new precedent via the Matter of Simeio Solutions LLC. The AAO determined that a worksite relocation outside of the intended area of employment on the original H-1B petition qualifies as a material change to the petition. H-1B employers are now required to file an amended petition for the employee before placing them at the new worksite. The U.S. Citizenship and Immigration Services finalized guidance based on the Simeio Solutions decision in ...

On Monday, President Obama signed an Executive Order outlining the paid sick leave benefits that many federal contractors will be required to provide as early as January 1, 2017.

A wide range of federal contracts entered into on or after January 1, 2017, and any subcontracts entered into thereunder, will be required to include language under which employees will earn no less than one hour of paid sick leave for every 30 hours worked under covered contracts.

That leave may be used by an employee for absences due to any of the following:

(i) Physical or mental illness, injury, or medical ...

Over the last few years the National Labor Relations Board (“NLRB”) has been cracking down on employee confidentiality mandates. An employer can legally require employees to keep trade secrets and legally protected information confidential, but according to the NLRB’s most recent ruling on August 27, 2015 an employer cannot even “recommend” that employees keep internal investigations confidential  (Boeing Co., 362 N.L.R.B. No. 195, 8/27/2015). The Board ruled that Boeing Company’s revised policy that “recommends” employees refrain from discussing HR ...

The Internal Revenue Service (IRS) recently released its second set of guidance discussing approaches to the excise tax on employer-sponsored health coverage, often referred to as the “Cadillac tax.” Starting in 2018, the Cadillac tax imposes a 40% tax on the cost of employer-sponsored health coverage in excess of $10,200 for self-only coverage and $27,500 for family coverage. Intended to target overly-generous employer-provided health plans, the Cadillac tax continues to be one of the most controversial parts of the Affordable Care Act (ACA) as dollar thresholds set in ...

As we anticipated and previously discussed, on August 27, 2015, the National Labor Relations Board (NLRB) issued its ruling in the closely watched Browning-Ferris Industries of California, Inc. (BFI) case (Case 32-RC-109684). In rejecting over 30 years of precedent and the underlying Administrative Law Judge’s ruling on the issue, the NLRB’s pro-union majority established a new standard for determining joint-employer status. While the decision related to a company’s engagement of a subcontractor supplying workers, the NLRB’s new joint-employer standard will ...

Failure to document performance or conduct problems is a common mistake employers make. Typically, employee handbooks contain provisions requiring periodic performance reviews.  Similarly, handbooks contain discipline provisions that include procedures dealing with the issuance of warnings related to the violation of work rules.  How employers use and apply these provisions can make the difference in successfully defending claims.

A recent decision out of the United States Court of Appeals for the District of Columbia illustrates how critical it is to properly document an ...