Labor & Employment Law Update

Despite labor’s historical stronghold in the Midwest – Indiana, Michigan, Iowa, Tennessee and now, Wisconsin – have become Right-to-Work (RTW) states.  Is Illinois next?  What does this mean for employers?

RTW In a Nutshell: Money and Power

In the 25 states that have not passed RTW laws, including Illinois and Missouri, a union security clause in a collective bargaining agreement requires all employees in the bargaining unit to either be a dues/fee-paying union member – or a non-member who pays “fair share” fees.  The battle is over the non-member “fair share” ...

The Cook County Board of Commissioners recently passed an ordinance which prohibits any company or individual who is found guilty or liable of wage theft from obtaining Cook County procurement contracts, business licenses or property tax incentives for up to five years. The ordinance is effective May 1, 2015. Cook County is now the largest municipal entity in the United States to have passed an ordinance of this nature.

Under the new Cook County Wage Theft Ordinance, businesses found to have violated the Fair Labor Standards Act (FLSA), Illinois Wage Payment and Collection Act ...

Despite winter-like weather across much of the country, it is March and that means college students are searching for internships. On January 30, a federal appeals court heard oral arguments on a pair of class action lawsuits in which interns in the film and publishing industries sued for unpaid wages. Although the court has yet to rule, there are steps your organization can take now to avoid this type of litigation.

Under the FLSA anyone who performs work is entitled to compensation. For nonprofits, federal regulations clarify that “volunteers” who freely serve public agencies ...

Ever since the NLRB attempted to put into effect its ambush (aka “quickie”) election rule on April 30, 2012, we have addressed its back and forth. As a reminder, this rule required employers to counter union organizing campaigns in 14-21 days versus the previous 42 day requirement.  The first action to block this new rule occurred on May 14, 2012 when a U.S. District Court ruled the rule was invalid because improper procedure had been used to pass it.   U.S. Chamber of Commerce et. Al. v. NLRB (D.C. Cir. 1:11-cv-02262).   However, the court did not clarify if the rule itself was ...

On February 25, 2015, the U.S. Department of Labor issued a final rule modifying the definition of “spouse” under the federal Family and Medical Leave Act.

This final rule, which will take effect on March 27, 2015, is a shift from the current language of 29 C.F.R. §§ 825.102 and 825.122(b), which defines “spouse” to mean “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

As of March 27, the definition of “spouse” under the FMLA ...

Timing may not be everything when it comes to employment retaliation claims, but it is a critical factor.  An employee who can show adverse employment action taken on the heels of engaging in some type of protected activity (e.g. complaining to the EEOC) is in prime position to assert the employer unlawfully retaliated.  A fundamental step to proving retaliation is to show the employer was aware of the protected activity at the time of the adverse employment decision.  Naturally, an employer that is unaware of protected activity cannot retaliate against an employer for engaging in ...

On January 26, 2015, the U.S. Supreme Court established a new standard for the vesting of collectively bargained retiree medical benefits, holding in M&G Polymers USA, LLC, et al. v. Tackett, et al., that collective bargaining agreements (CBAs) must be interpreted using ordinary principles of contract law and rejecting the presumption that collectively bargained retiree welfare benefits vest for life.  M&G Polymers, No. 13-1010 (U.S. Jan. 26, 2015).

In M&G Polymers, a group of retirees brought suit against their former employer after the announcement that retirees ...

On March 9, 2015, the U.S. Supreme Court issued a ruling in Perez v. Mortgage Bankers Association that should put all employers on notice.  In this decision, the Court held that federal agencies, specifically the Department of Labor (DOL), do not need to go through the same rulemaking procedure of providing notice to the public and soliciting input before issuing their own interpretive guidance, even if it contradicts the agency’s prior guidance.

In Perez, the DOL issued opinion letters that stated mortgage loan officers were not eligible for overtime under the ...

Beginning January 1, 2015, California employers (with 50 or more employees) must provide anti-bullying training to supervisors within 6 months of assuming a supervisory role, and during biannual anti-sexual harassment training.  California broadly defines workplace bullying as: “Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  This may include:

• Repeated infliction of verbal abuse (e. g., derogatory remarks, insults, and ...

Many federal contractors had their 2014 annual affirmative action plans in place prior to the March 24, 2014 effective date for contractors to begin analyzing and maintaining a hiring benchmark for protected veterans, as well as a utilization goal for disabled individuals.  However, the time is nearing to update those plans and be compliant with the new regulations.  What does this mean for you?

Veterans

If you haven’t already started, you should begin asking your applicants to voluntarily self-identify whether they are a protected veteran or not (you do not ask them to ...