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…

Even as IPOs bloom this spring in the technology sector, there exists well publicized macro-economic uncertainty, stemming from Brexit concerns, among other developments. Real threats to free trade and investment flows remain, with the potential for a much more serious outbreak of protectionism and isolation on a global scale. A recession may or may not be looming, depending on the day and your media outlet. In these uncertain times, the best counsel know to be…

For 15 years, the minimum salary threshold required for US workers to qualify for the Fair Labor Standards Act’s “white-collar” exemptions has been $23,660 per year. On March 7, 2019, the Department of Labor issued a new overtime proposal increasing that minimum salary threshold to $35,308 per year. The DOL estimates the new rule will take effect in January 2020.…

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…

On January 25, 2019, the National Labor Relations Board reaffirmed its adherence to the traditional common law independent contractor test for determining whether a worker is an employee or an independent contractor under the National Labor Relations Act. In SuperShuttle DFW, Inc., the Board expressly overruled its 2014 FedEx Home Delivery decision. In FedEx, the Board drastically reduced the significance of entrepreneurial opportunity in the determination of independent contractor status. FedEx emphasized the right…

The Department of Labor’s newly issued opinion letter provides good news for employers who use tipped workers. On November 8th, the DOL reversed its previous “80/20” guidance on use of the tip credit. The tip credit permits employers to pay employees in tip-based positions, such as bartenders and waiters, a lower hourly wage than the federally mandated minimum wage (with the thought that earned tips will make up the difference). Under the previous “80/20” rule,…