Daniel Pasternak

Photo of Daniel Pasternak

Latest Articles

Most business owners would shudder at the thought of rats being on their premises, but one rat is particularly unwelcome to employers – “Scabby the Rat.”  This red-eyed, rather vicious looking rat-shaped balloon (sometimes as tall as 25 feet) has become a symbol used by labor unions across the country to publicize that they have a dispute with an employer. No stranger to the courts, Scabby has been the subject of many legal challenges from…
Our colleague Brent Owen at the FrESH Law Blog (which covers perspectives on Environmental, Safety, and Health law) authored the post below addressing the US Supreme Court’s upcoming decision in Kisor v. Wilkie, which will address the Auer standard of deference that is applied by the courts to administrative agencies’ interpretations of their regulations.  Although Kisor involves the Department of Veterans Affairs, the ruling is anticipated to have broad implications for agency action, including agencies that regulate employment…
In 2006, Arizona voters approved a ballot measure which resulted in the passage of the Arizona Minimum Wage Act and established a state-wide minimum wage (currently $11.00/hour).  This law also permitted individual Arizona counties, cities, and towns to regulate both the minimum wage and the employee benefits to be provided by private employers located within their geographic boundaries.  That meant that local governments could establish a minimum wage higher (but not lower) than the statewide…
Former National Labor Relations Board (“NLRB” or “Board”) two-term Chairman and Member Mark Gaston Pearce announced on February 6, 2019 that he would not seek renomination to the Board.  Mr. Pearce – a former union-side lawyer who was appointed by President Obama – served until the end of his second term on August 27, 2018.  To the surprise of many, given his active role in deciding many union- and employee-friendly decisions, including the now infamous…
Majority Rules That Skycap’s Complaint About Bad Tipping Was Not Protected Concerted Activity The National Labor Relations Board (“NLRB” or “Board”) kicked off 2019 with an important decision that significantly narrowed the standard for when an individual employee’s conduct will be found to be “protected concerted activity” under the National Labor Relations Act (“NLRA” or “Act”).  In so doing, the Republican-majority Board took another step towards restoring the pre-Obama era conservativism to the NLRB’s interpretation…
On January 15, 2019, the United States Supreme Court held in New Prime Inc. v. Oliveira that a trucking company could not compel its drivers, which it classified as independent contractors, to arbitrate their wage and hour claims against the company because Congress intended to exempt all interstate transportation workers from the Federal Arbitration Act (“FAA”).  Section 1 of the FAA exempts “contracts of employment of seamen, railroad employees, or any other class of workers…
As the Supreme Court’s October 2018 term opened, we wrote about three significant cases on its docket involving arbitration, each of which are likely to have an impact on the arbitration of employment-related claims.  The Court issued its decision in the first of those cases on January 8, 2019.  In his first opinion since joining the Court, Justice Kavanaugh authored the opinion in Henry Schein, et al. v. Archer & White Sales, Inc.  The…
Much attention over the past few years has been given to the ongoing saga concerning the standard applied by National Labor Relations Board (“NLRB” or “Board”) to determine when two unrelated business entities share sufficient control over a group of employees such that they may be deemed “joint employers” under the National Labor Relations Act (“NLRA”) – and therefore jointly liable for obligations and liabilities under that statute.  Going back to 2015, in Browning-Ferris Industries
On December 7, 2018, the National Labor Relations Board (“NLRB”) issued its 2019-2022 Strategic Plan, which focuses on four primary goals.  First, the Board targets a 20% decrease, collectively, in the time required to resolve unfair labor practice charges from filing to resolution.  This collective decrease is to be accomplished through incremental decreases of 5% of the time spent in each of four stages of the charge process, including: 1) the initial charge intake stage…
On December 7, 2018, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously held in Hustvet v. Allina Health System that an employer did not unlawfully terminate an employee who refused to receive a rubella vaccination.  The plaintiff, a healthcare specialist working with potentially vulnerable patients, requested an accommodation exempting her from receiving the measles, mumps, and rubella vaccine due to her “many allergies and chemical sensitivities.”  She also refused…