Labor & Employment Law Update

Flu season is here and that likely means employers can hear sneezing and sniffling up and down the hallways at work.  Sick employees are less productive and their absences can disrupt an employer’s operations.  Worse still, sick employees may come into work and spread an illness to coworkers, exacerbating the problem.  According to the U.S. Center for Disease Control (CDC), recent studies show that flu vaccinations reduce the risk of flu by between 40 and 60 percent.  Given this, employers may wish they could mandate that all employees receive a flu vaccination.  But can they?

For those ...

In May 2018, the U.S. Supreme Court rejected the argument that the National Labor Relations Act (the “Act”) prohibits mandatory arbitration agreements that contain class and collective action waivers.  But that has not stopped the National Labor Relations Board (NLRB), the federal agency that enforces the Act, from weighing-in and declaring other arbitration agreement provisions unlawful.

As a string of recent NLRB decisions makes clear—the newest of which is Beena Beauty Holding, Inc., 368 NLRB No. 91 (2019)—mandatory arbitration provisions, even in non-union ...

Last year we reported on Haven Healthcare, the venture started by Amazon, Berkshire Hathaway and J.P. Morgan. Amazon has now announced a pilot program for its employees in Seattle that puts a modern spin on employer provided health care.

Announced in September, Amazon Care provides telemedicine and in-person health care services. Employees can see a provider via a mobile app or website and text a nurse on any health topic. If follow-up care is needed, a nurse can make a home visit. Amazon contracted with a private practice for the nurse visits to collect lab samples ...

The holiday season is fast approaching. What should be a joyful time filled with family, friends and festivities is all too often the opposite for employers: a season filled with legal and logistical challenges with their employees. 

One of these potential challenges is the employer’s legal obligation to accommodate employees’ sincerely-held religious beliefs. Title VII of the Civil Rights Act of 1964, as well as various state legislation such as the Illinois Human Rights Act and the Missouri Human Rights Act, prohibits employment discrimination based on religion ...

Long used to prevent former employees from gaining an unfair competitive advantage, covenants not to compete are increasingly under attack. California, North Dakota and Oklahoma essentially ban employee non-competes and recent legislation in Illinois, Maine, Maryland, Massachusetts, New Hampshire, Oregon, and Washington prevents their use with lower wage employees (the definition of which varies by state). Some laws go further, in Massachusetts, for example, a non-compete cannot be enforced against an employee terminated without cause and, in many cases, the employer ...

Colleges and universities have witnessed major developments in September with student teaching and research assistants at private schools losing the right to unionize but student-athletes in California gaining the right to be paid. U.S. higher education will see significant changes as a result. 

In Major Reversal, U.S. Labor Board’s New Proposed Rule Would Deny Students at Private Schools the Right Unionize

In 2016, the National Labor Relations Board (NRLB) gave teaching and research assistants at private colleges and universities the right to unionize. Viewed as a major ...

The National Labor Relations Act (NLRA) requires employers with a unionized workforce to bargain in good faith with the union over mandatory subjects of bargaining (e.g., wages, hours, and other terms and conditions of employment). The duty to bargain continues during the term of a collective bargaining agreement (CBA) with respect to mandatory subjects of bargaining that are not covered by the agreement.  An employer who makes unilateral changes to these terms without satisfying its bargaining obligations violates the Act, unless it can establish a valid defense.  Until now ...

The Ninth Circuit U.S. Court of Appeals ruled in a California lawsuit that one of the most recognized franchises, McDonald’s, does not exert sufficient direction or control over its franchisees’ employees to be considered a joint employer under California statutory or common law and therefore is not liable for how the franchisee treats its employees.

In doing so, the Ninth Circuit affirmed the District Court’s ruling that McDonald’s was not an employer under California’s Labor Code definition under the “control” definition, the “suffer or permit” definition ...

Wellness programs are a popular employee benefit. Whether an employer already has a program in place or is considering implementing one, it should be mindful of the requirements of federal law.

The Health Insurance Portability and Accountability Act (HIPAA) divides workplace wellness programs into two categories: participatory and health-contingent.  The latter are subject to specific nondiscrimination standards while the former are not.

Participatory programs give an employee a reward for engaging in a specific act.  These include gym membership reimbursement; ...

In a follow up to our recent post, the US Department of Labor (DOL) has now issued its final rule regarding the salary thresholds for exempt status. The final rule will go into effect on January 1, 2020 and establishes the following rules:

1. Salary exempt employees must earn at least $684/week (equivalent to $35,568 per year for a full-year worker) (which is slightly more than was proposed in March 2019 due to inflation/updated data but less than was proposed during the Obama Era);
2. Employers can use non-discretionary bonuses and incentive payments that are paid at least ...