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Just as businesses were expressing cautious optimism over the interim replacement of Labor Secretary Acosta by veteran GOP operative and business ally Patrick Pizzella,  on July 18, 2019 the President announced plans to nominate business attorney Eugene Scalia to fill the role.

The son of former Supreme Court Justice Antonin Scalia and current attorney at Gibson Dunn in Washington D.C., Eugene Scalia has fought against a number of labor proposals backed by Democrats.  Scalia is expected to more actively push a business-friendly agenda at the Labor Department—and certainly more than his predecessor, who has been accused by aides in the White House of slow-walking the President’s pro-business agenda.

 

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Employees have the right to engage in concerted activities, and employers commit unfair labor practices if they retaliate against employees for engaging in those activities.

It is important to understand the concept of concerted activity.

In order to find that an employee has engaged in concerted activity, it must be shown that: 1) the activity was engaged in with or on the authority of other employees; or 2) the activity was designed to initiate or to induce or to prepare for group action; and 3) the activity was engaged in for the purpose of “mutual aid or protection.”

However, the concept of concerted activity does not apply to activities of a purely personal nature that do not envision group action.

The National Labor Relations Board has also developed the doctrine of “inherently concerted activities.” Under this doctrine, an employee engages in concerted activity if he or she engages in discussions about “vital terms and conditions of employment,” such as wages and job security, even though such discussions do not have the express object of inducing group action.

When confronted with claims that an employee was terminated or treated less favorably because the employee had engaged in concerted activity, the employer should consider conducting an analysis of whether the alleged activity by the employee falls within the above described requirements.

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New York City’s Museum of Sex (“the Museum”) is facing a lawsuit from a former employee who alleges that the Museum failed to protect her from sexual harassment by her co-workers and the Museum’s patrons.  The plaintiff’s complaint alleges that “[p]atrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives. The Museum has done nothing to discourage this behavior, despite numerous complaints.” In fact, the plaintiff alleges that when she complained to management about the mistreatment, she was told the conditions were “the nature of the establishment.”

While few employers run a “sex museum,” many employers may want to take notice of the Museum’s plight. Under Title VII of the Civil Rights Act of 1964, employers are responsible for keeping the workplace free from harassment and discrimination by employees, as well as non-employees (yes, even customers!), so long as the employer has control over the persons and knew or should have known about the discriminatory conduct.  The Equal Employment Opportunity Commission’s guidance on this issue is clear: “The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”  This means that an employer may not avoid liability merely because a customer, rather than an employee, subjects an employee to unwelcome harassment.  Instead, once an employer knows of the sexual harassment, the employer should consider acting in a way that is reasonably designed to end the complained-of behavior. Ultimately, an employer may want to refrain from permitting a customer to sexually harass its employees, even if the customer is usually—but not always—right.

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Last week, the Ninth Circuit Court of Appeals revived two previously dismissed cases against California employers that claimed that the employers failed to pay workers for time spent undergoing bag inspections before leaving work each day. The Ninth Circuit’s decisions overturned previous rulings that the time spent by employees in post-shift security screens was not compensable under the de minimis doctrine. The Ninth Circuit relied on a recent California Supreme Court opinion that found that the federal di minimis doctrine, which provides that employers do not have to pay workers for short, insignificant and unmeasurable periods of time, does not apply to California wage and hour claims. Relying on this California Supreme Court decision, the Ninth Circuit found that California law requires employers to compensate employees for regular time worked off-the-clock that is more than a minute or brief, but does not require compensation for “split-second absurdities.” Applying this rule to the security bag inspections, the Ninth Circuit found that such inspections that took anywhere from zero seconds to several minutes, multiple times each day, could not, as a matter of law, qualify as “split-second absurdities.” The federal district courts are also reviving similarly dismissed claims. These decisions and the California Supreme Court’s rejection of the federal de minimis doctrine open liability for employers who fail to compensate employees for periods of time spent completing any required task after clocking out but before leaving work, despite how brief these periods of time may be.

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The summer edition of Snell & Wilmer’s Under Construction newsletter has been published. See here.

The Labor and Employment team contributed to this issue. Mark Morris provides a recent update on Utah construction and negligence law, and John Lomax, Swen Prior, Marian Zapata-Rossa, and Rubi Bujanda discuss the evolving Arizona and Nevada marijuana laws in the construction context.

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As we reported last year, “Times They Are a-Changin’” [see article here]. However, given the monumental shift in public perceptions of cannabis, the Nevada legislature has followed suit and has now taken a giant step further into the marijuana morass. As a result, employers are now prevented from rejecting job seekers because they failed a test for marijuana use. For more information, read on here.

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On Friday, June 14, 2019, the National Labor Relations Board (“NLRB” or “Board”) issued a decision of significance to employers. In particular, the NLRB decision affects employers, such as  hospitals and hotels, that have areas of their property open to the public.

Reversing established precedent, the Board held that employers may prohibit non-employee union representatives  from engaging in promotional or organizational activities (union solicitations and distributions of organizing materials) on the employers’ property, including those areas that are open to the public. UPMC 368 NLRB No.2 (June 14, 2019).

Two important exceptions apply to this new rule : 1) inaccessibility; and 2) discrimination.

Under the inaccessibility exception, the union would have to show that the employer may not prohibit organizational activities on its property by non-employees, because the union has no reasonable means of communicating  its message to employees, other than on the employer’s premises that are open to the public. Under the discrimination exception, the union would have to show that the employer may not prohibit non-employee union organizers from organizing activities on the employer’s premises, because the employer permits other outside groups to engage in promotional activities on said premises.

When confronted with solicitation or other promotional activities by non-employee union representatives on the employers’ private property, employers may want to consult with legal counsel regarding their right to prohibit such activities and require the removal of said representatives from the employers’ property.

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A recent settlement between the American Civil Liberties Union (“ACLU”) and a national employer highlights the importance of ensuring that paid parental leave benefits provided by employers are not just written in a gender neutral policy, but also administered on gender neutral terms. The employer will pay $5 million to fathers who claim they were denied the opportunity to take additional paid parental leave as primary caregivers because of their gender, despite the employer’s paid parental leave policy that, on its face, did not distinguish between mothers and fathers. Like many paid parental leave policies, the employer’s policy stated that primary caregivers would receive more paid parental leave than secondary caregivers. Certainly, the plain language of the policy is gender neutral, so what was the issue? According to the ACLU’s complaint, the employer administered the policy in a way that deemed mothers the presumptive primary caregiver while fathers were deemed the presumptive secondary caregiver, unless they could show that their spouses or partners were incapacitated or had returned to work.

Employers may want to use this opportunity to make sure that any parental leave policies do not distinguish between mothers and fathers, both in the written policy and in the administration. Employers offering a 2-tiered parental leave benefit differentiating between primary and secondary caregivers may want to be certain that there are no implicit presumptions in those designations, but may also want to consider revising such policies to provide the same benefits, regardless of primary or secondary caregiver status.

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On June 3, 2019, the United States Supreme Court (“Supreme Court”) unanimously held in Fort Bend County v. Davis that federal courts may be able to hear claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) without the complainants having first brought their claims to the United States Equal Employment Opportunity Commission (“EEOC”) or the relevant state agencies. The Supreme Court determined that Title VII’s charge-filing precondition to filing suit is not a “jurisdictional” requirement, and an employer’s failure-to-exhaust-administrative-remedies defense is subject to waiver if not timely raised. We summarize Title VII law and the Davis decision and what this decision means (and doesn’t mean) for employers here.

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It has been more than a year since the California Supreme Court issued its landmark decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, setting forth a new test for determining whether a worker is properly classified as an independent contractor for wage order claims. As many commentators explained, the court significantly changed the legal landscape for California businesses by rejecting 30 years of precedent that not only interpreted independent contractor status, but that also offered guidance to businesses on how to properly classify workers. For more information, read on here.

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