Labor & Employment Blog

On January 11, 2019, the National Labor Relations Board issued a decision narrowing the scope of what qualifies as “protected concerted activity” under the National Labor Relations Act. With this decision, the Board reversed course on a long line of Obama-era cases expanding  the scope of when an employee’s complaints could be considered to be protected concerted activity, under the Act. The Board also stated its desire to overrule other cases that previously expanded the…
On January 25, the National Labor Relations Board (NLRB) reversed an Obama-era decision addressing the standard for distinguishing between independent contractors and employees. The prior NLRB held that if a worker is economically dependent on the business providing the work (i.e., the business provides most or all of the work done by that worker), then that person is most likely an employee, not an independent contractor. The Trump-appointed NLRB majority reversed that “economic dependence” standard…
Earlier this month, the Department of Labor issued an opinion letter ending the “80/20 rule” for whether employers could take a tip credit on employees who performed both tipped and non-tipped work. (FLSA2018-27.) The rule prohibited employers from taking a tip credit on the minimum wage if the employee’s non-tipped work consumed more than 20 percent of the employee’s work. In the opinion letter, the DOL stated that it would not “place a…
Two recent settlements between employers and the U.S. Department of Justice (DOJ) highlight the complex interplay between U.S. immigration and export control laws in the hiring process. The settlements provide a reminder to employers of the potential employment discrimination pitfalls for companies trying to comply with export control laws. In late August 2018, the DOJ’s Immigration and Employee Rights Section (IER) reached a settlement agreement with international law firm Clifford Chance US LLP, which the…
On September 25, 2018, the Ninth Circuit granted Uber’s motion to compel arbitration and decertified a class of 160,000 drivers alleging violations of California state law, including misclassification of the drivers as independent contractors. The decision does not come as a great surprise given the court’s 2016 ruling compelling arbitration in a related case, but it serves as a reminder to companies everywhere to re-examine their independent contractor agreements.…
Today, the United States Supreme Court ruled in Epic Systems Corp. v. Lewis, No. 16-285 that employers could lawfully require employees to waive their rights to pursue employment-related class actions through arbitration agreements providing for individualized proceedings. In a 5-4 decision, the Court ruled that such waivers do not violate the National Labor Relations Act.…
Human Resource and Labor Relations professionals (HR/LR) normally take the lead on workplace investigations of employee misconduct. Given that, they may also bear the blame for investigations that result in adverse employment actions that do not withstand litigation scrutiny. If a current or former employee challenges an adverse employment action via an EEOC or NLRB charge, a DOL complaint, a CBA grievance, or court action, the employer incurs significant expense and disruption simply defending the…
On April 30, 2018, the California Supreme Court substantially narrowed the class of individuals who qualify as independent contractors under California wage-hour law and paved the way for a new wave of class actions. In Dynamex Operations West, Inc., the Court adopted the restrictive “ABC test” used in other jurisdictions for determining when a worker qualifies as an independent contractor under California’s Industrial Wage Orders. Under that test, the court presumes‌ all workers qualify…