Written by Jonathan Turner

Spoiler Alert – unless you regularly deal with collective bargaining agreements you may find this a tad wonky.

The National Labor Relations Board (“NLRB” or the “Board”) recently fashioned a new, business-friendly standard for determining when an employer’s action taken in reliance on contractual provisions under a collective bargaining agreement (“CBA”) constitutes a “unilateral change” in violation of the National Labor Relations Act (“NLRA”).  Under the new standard, set forth in M.V. Transportation, Inc., 368 NLRB No. 66, the Board has adopted the “contract coverage” test fashioned and historically applied by the Court of Appeals for the District of Columbia.  In doing so, the Board abandoned the “clear and unmistakable waiver” test traditionally applied by the Board.  Under the new standard, the Board first determines if the contract provision relied on by the employer covers the employer’s action challenged by the union.  If so, the Board will conclude that “the agreement … authorized the employer to make the disputed change unilaterally, and the employer will not have violated [the NLRA].”  If, on the other hand, there are no provisions in the CBA that covers a disputed unilateral change, the Board then will consider whether the union nevertheless waived its right to bargain over the change.  In making this latter determination the Board will continue to apply the “clear and unmistakable waiver… analysis to determine whether some combination of contractual language, bargaining history, and past practice establishes that the union waived its right to bargain regarding a challenged unilateral change.” Continue reading “NLRB Adopts Employer-Friendly Standard Regarding What Constitutes a Unilateral Change in Violation of the NLRA”

Written by Jeremy Mittman and Stephen Rossi

Finally, an employer-friendly law passed in California! Unfortunately, it only affects a small number of employees— but for those employers that are implicated, the law is a welcome reprieve.

 

On September 5, 2019, California Governor Gavin Newsom signed into law Senate Bill 671, the “Photoshoot Pay Easement Act,” which went into effect immediately.  This law specifies that any short-term print shoot employee (from models to crew members) can be paid on the employer’s next regular pay day (including by mail), rather than on the last day they work. Continue reading “Print Shoot Pay Delay”

Written by Jeremy Mittman 

This week, the U.S. Department of Labor (“DOL”) unveiled the final version of its overtime exemption rule, which sets the annual salary threshold workers need to exceed to qualify for the Fair Labor Standards Act’s (“FLSA”) “white collar” exemptions at $35,568 per year (up from the current annual salary threshold of $23,660).  The DOL estimates that about 1.3 million workers who hadn’t previously been eligible for overtime will now stand to receive it once the rule takes effect on January 1, 2020.

 

The FLSA’s “white collar” exemptions apply to employees employed in bona fide administrative, executive, professional, and computer-related capacities, as well as outside sales employees.  If employees meet the requirements for these exemptions (including, where applicable, the salary basis requirement), employers need not pay them overtime for any time worked over 40 hours per week under federal law.

Continue reading “Raising The Bar: DOL Ups Salary Basis Requirement For Overtime Exemptions”

Written by Jeremy Mittman and Bethanie Thau In 2018, California passed a law that greatly expanded sexual harassment training requirements for employers (see here). Under the law, employers of as few as five people must provide two hours of interactive sexual harassment training to their supervisors and one hour to all non-supervisory employees. The training was to have been completed by January 1, 2020.  Just … Continue reading Hold Your Horses: California Extends Deadline For Mandatory Sexual Harassment Training

By Jeremy Mittman and Stephen Franz

Last week, the California Supreme Court ruled that a former start-up employee could not hold his former boss personally liable for unpaid wages based on the theory of common law conversion.  Conversion is a legal term for theft.  This is a win for employers as, if the Court had ruled otherwise, employers potentially could be held liable for tort damages (including punitive damages) for failing to pay wages. Continue reading “California Supreme Court: Employee Can’t Bring Conversion Claim for Unpaid Wages”

by Jeremy Mittman and Gregory Hessinger 

Why This Matters

On August 12, 2019, New York Governor Cuomo signed into law legislation that greatly strengthens protections against sexual harassment. The bill, SB 6577, makes sweeping changes to current sexual harassment and discrimination laws.  Most will take effect 60 days from the date the Governor signed the bill, or on October 11, 2019. New York State employers should work with employment counsel to alter their policies and practices to comply with these new requirements.

Continue reading “New York State Enacts Broad New Sexual Harassment & Discrimination Legislation”

By Jeremy Mittman

Within the past two weeks, both California and New York have passed laws prohibiting employers from discriminating based upon hairstyle.  Governor Gavin Newsom signed California’s “CROWN Act” (Create a Respectful and Open Workplace for Natural Hair) on July 3, 2019.  The law amends the state’s Education and Government Codes to define “race or ethnicity” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” It takes effect on January 1, 2020. Continue reading “Let the Sunshine In: California and New York Prohibit Discrimination Based on Hairstyle”

By Jonathan Turner

Why This Matters

In June, the National Labor Relations Board (“NLRB”) overturned a nearly 38-year old precedent when it ruled that employers may deny nonemployee union representatives access to areas of their property open to the public, like cafeterias or restaurants, when the union representatives are there to solicit for or promote union membership.  In this ruling, the NLRB overruled its previous decisions that had recognized a “public space” exception under which employers were required to permit non-employee union organizers to engage in union activity in public cafeterias or restaurants if the organizers used the facility in a manner consistent with its intended use and were not disruptive. Continue reading “Get Back: NLRB Overturns Long-Standing “Public Space” Exception”