Chicago is the most recent city to adopt a “predictive scheduling” ordinance, the Chicago Fair Workweek Ordinance. Effective July 1, 2020, employers subject to the Ordinance must provide advance notice of work schedules to covered employees. If changes are made to the posted schedule, employers must pay additional wages, “predictability pay,” as a penalty. This penalty applies to both increases and reductions of shifts.…

The NLRB recently determined that merely discrediting an employer’s justification for a union activist’s termination (a pretext finding) could be insufficient to demonstrate the termination was unlawful. Electrolux Home Products, 368 NLRB No. 34 (2019). This outcome was preordained by the NLRB’s decision in Wright Line, 251 NLRB 1083 (1980) and was reinforced as an acceptable legal analysis by the Supreme Court in a decision under Title VII, St. Mary’s Honor Center v. Hicks, 509…

Historically employers could not restrict labor organizing activity in employer-owned, publicly accessible spaces. But, last month, in UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2 (2019), the NLRB reversed nearly 40 years of precedent holding that employers violate the National Labor Relations Act (NLRA) if they prohibit nonemployee labor organizers from publicly-accessible spaces. Post UPMC, employers may adopt and implement neutral policies regulating the use of employer-owned spaces open to the public (such as cafeterias) and…

This article was originally published on Law360.com. Three recent decisions arising under the National Labor Relations Act highlight that ambiguity and inattentiveness are the twin banes of labor and employment attorneys. In all three cases, the dispute arose because two personnel policies or approaches overlapped, opening the way for conflicting claims. As these cases demonstrate, letting the National Labor Relations Board decide, “who is on first” can have significant consequences and can trigger an onslaught…

As we previously reported, in January, in Rosenbach v. Six Flags Entertainment Corp., the Illinois Supreme Court held that a plaintiff need not plead an actual injury beyond a per se statutory violation to state a claim for statutory liquidated damages or injunctive relief under the Illinois Biometric Privacy Act (BIPA). (By way of reminder, the Illinois BIPA prohibits gathering biometric data such as fingerprints without notice and consent. It also requires data collectors…

Originally published in Benefits Law Journal. Champagne and a steak dinner have traditionally marked celebrations at the close of a corporate deal. Celebrations these days are being marred by a party pooper—Employee Retirement Income Security Act (ERISA) pension plan successor liability. Increasingly, courts are delivering a “pay up now” notice to the buyer of financially challenged companies with underfunded pension plans through the use of innovative judicial remedies. On September 4, 2018, the Sixth Circuit…

This article was originally published on Law360.com. Taking advantage of an unaddressed area of law, and his virtually unfettered discretion to control the prosecution of unfair labor practice allegations, the general counsel of the National Labor Relations Board has returned the board’s deferral policy to its historical practice. Once again, unfair practice charges in a union-represented workplace will be deferred to the parties’ grievance and arbitration process whenever a grievance has been filed or could…