Labor & Employment Law Update

With the 2016 general election heating up, discussions about politics and candidates will inevitably enter the workplace. Employers should be aware of several critical legal issues when responding or reacting to politics in the workplace, as well as understanding workers’ rights to engage in the political process.

Imposing a blanket ban on political discussions may run afoul of the National Labor Relations Act.

The NLRA, which applies to private unionized and non-unionized workplaces, protects non-supervisory employees’ discussions about terms and conditions of ...

The Americans with Disabilities Act (ADA) and the laws of many states generally require employers to provide “reasonable accommodations” to certain employees with disabilities. This requires the employer and employee to participate in an interactive process aimed at finding job changes that allow the employee to continue working. For many employers, that requirement raises many questions for which there are no simple, definitive answers—which forces employers to make accommodation decisions amid considerable uncertainty.

But the recent decision in Dillard v ...

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act, the law that allows private sector employees to address the terms and conditions of their employment (e.g., wages, hours, benefits) through collective action. Through a recently released Advice Memorandum, the NLRB expanded its role to include regulating independent contractor relationships.  Pac. 9 Transp., Inc., Advice Mem., No. 21-CA-150875 (NLRB 12/18/2015, released 8/26/2016).

In Pac 9, multiple unfair labor practice charges were filed, alleging violations of the Act as it ...

Recently the Illinois Attorney General filed a lawsuit against a well-known restaurant franchise seeking to enjoin it from enforcing non-compete provisions in employment agreements that it had required all employees to sign, including hourly employees such as delivery drivers. The clauses at issue prohibited employees from working at any other similar business within two miles of any of the franchisor or its franchisees’ stores in the United States. Even though the franchisor agreed to voluntarily drop these clauses moving forward, the Illinois legislature took action and ...

Last month, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues.  Having last issued guidance on retaliation claims in 1998, the agency stated that an updated publication was necessary in light of the significant court rulings on these claims, as well as the increasing frequency of retaliation claims in administrative charges and lawsuits. Retaliation is now the most commonly alleged basis of discrimination.

Of particular interest, the EEOC discusses at length its position on various issues that arise in determining whether an employee has engaged in ...

A new proposed rule represents a hopeful change for foreign entrepreneurs looking to stay in the U.S. to start and grow their businesses.

Currently the only routes for foreign entrepreneurs to obtain a visa involve huge risk. Those routes, via a Treaty E visa or the EB-5 visa program, require applicants to make significant investments upfront and essentially build their businesses to satisfy the visa criteria, with no guarantee that a visa will be granted.

One of my clients, who sold all-terrain vehicles, imported several of these vehicles and related equipment, not knowing if he ...

Recently, the United States Court of Appeals for the Second Circuit ruled that police officials in Madison, Connecticut are not immune from liability for a fired police officer’s claim that she was retaliated against for her First Amendment speech. The case of Ricciuti v. Gyzenis, No. 12-432 (2^nd Cir. August 24, 2016) involves a police officer who shortly after being hired inquired about the poor condition of police vehicles and was told that the department needed funds to cover overtime. On her own initiative, Rebecca Ricciuti prepared a work schedule that would have ...

Last week the EEOC filed suit against an Arizona car dealership for rescinding its offer to an applicant who tested positive for a substance banned by the company’s drug policy. The drug screen itself was legal. The ADA specifically allows employers to screen applicants and employees for illegal drug use. It was the employer’s policy of excluding anyone who tested positive for certain substances without first inquiring whether the substance was legally prescribed to treat a disability that prompted the EEOC to file suit. Notably, the EEOC filed suit on behalf of this particular ...

Compensation to employees who opt out of health insurance or other benefits, known as a “cash-in-lieu” program, can be an attractive option for both employers looking to manage skyrocketing health care costs and employees looking for a little extra cash. But a recent ruling by the Ninth Circuit Court of Appeals highlights a significant risk to employers of such programs.

In Flores v. City of San Gabriel, 2016 WL 3090782 (June 2, 2016), the first case of its kind, the court held that under the Fair Labor Standards Act (FLSA) cash payments made to an employee in lieu of benefits must ...

Today, August 23, 2016, the National Labor Relations Board issued a 3-1 decision ruling that graduate students, who work as teaching and research assistants at private universities, are entitled to collectively bargain.

The NLRB did so by expanding its interpretation of the definition of statutory employees to include student assistants working at private colleges and universities. The decision reversed a 2004 decision involving a similar campaign at Brown University. While many graduate students at public universities are already unionized, their right to do so was covered ...