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NLRB Restores Independent Contractor Test in SuperShuttle

On Friday, January 25, 2019, the National Labor Relations Board (“NLRB”) overruled an Obama-era decision focused on determining whether workers were independent contractors or employees and restored entrepreneurship as a key element in the NLRB’s analysis of the ten factors that comprise the test to determine independent contractor or employee status. SuperShuttle DFW, Inc., No. 16-RC-010963 (Jan. 25, 2019). Continue reading “NLRB Restores Independent Contractor Test in SuperShuttle”

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Watch for “No Match” Letters to make a Resurgence in 2019

Employers may recall the “no match” rule most recently from the George W. Bush administration’s efforts to strengthen the enforcement of U.S. immigration laws.  The Social Security Administration (SSA) sends “no match” letters to employers who submit W-2 forms with names and social security numbers for employees that do not match the SSA’s database information.  A “no match” can result when an employee provides a fake social security number to an employer.  The practice of sending “no match” letters became inactive during the Obama administration as the E-Verify system expanded and became the preferred method for confirming worker eligibility.

Continue reading “Watch for “No Match” Letters to make a Resurgence in 2019”

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National Labor Relations Board Releases Language of Proposed Rule to Reverse Obama-Era Joint-Employer Standard

Author: Adam Primm

The National Labor Relations Board (“NLRB”) released today a draft rule that would reverse the Obama Board’s 2015 Browning-Ferris Industries joint-employer decision, which greatly expanded the NLRB’s test for determining whether business constitute joint-employer. Continue reading “National Labor Relations Board Releases Language of Proposed Rule to Reverse Obama-Era Joint-Employer Standard”

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California Seeks to Protect Worker’s Right Not to Sign Arbitration or Nondisclosure Agreements

Authors: Rick Hepp and Eric Baisden

A California bill prompted by the #MeToo movement to prohibit employers from requiring workers to sign arbitration or nondisclosure agreements as a condition of employment is headed to the desk of Gov. Jerry Brown for final approval. Continue reading “California Seeks to Protect Worker’s Right Not to Sign Arbitration or Nondisclosure Agreements”

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NLRB Turns Attention to Employer Email Systems

Authors: Adam Primm and Peter Kirsanow

After a busy eight months since December of 2017 that saw the National Labor Relations Board (“NLRB”) issue a number of important decisions addressing topics such as joint-employers (rescinded), company policies, micro-units, and others, while also exploring rule-making regarding joint-employers, quickie elections, and blocking charges, the use of employer email systems is next in line for attention. Continue reading “NLRB Turns Attention to Employer Email Systems”

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Department of Labor Formally Kills Obama-Era Persuader Rule and Joint-Employer News

Authors: Eric Baisden and Adam Primm

Obama-Era Persuader Rule is Finally Dead

On July 17, 2018, the Department of Labor (“DOL”) formally announced what has appeared inevitable since President Trump’s election – the Obama-era “Persuader Rule” is officially dead.

The Persuader Rule was initially announced in 2016 when the DOL under President Obama revised its interpretation of Section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). Historically, the LMRDA required employers to report relationships with labor relations consultants hired to persuade employees on organizing and bargaining issues, including money spent on activities. Under Section 203(c) of the LMRDA, indirect advice given to an employer is exempt from the reporting requirement. Thus, advice and materials provided to employers by outside counsel or consultants are not subject to such disclosures. Continue reading “Department of Labor Formally Kills Obama-Era Persuader Rule and Joint-Employer News”

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Supreme Court Lays D.R. Horton Debate to Rest; Rejects NLRB Position That Class Waivers Violate Employee Rights

Authors: Peter Kirsanow and Adam Primm

On Monday, May 21, 2018, the United State Supreme Court, in a 5-4 opinion written by Neil Gorsuch, ended a six-year dispute started by the National Labor Relations Board’s (“NLRB”) 2012 decision in D.R. Horton, 357 NLRB 2277 (2012), which held that mandatory arbitration agreements that contain class and collective action waivers violate Section 7 of the National Labor Relations Act (“NLRA”). Continue reading “Supreme Court Lays D.R. Horton Debate to Rest; Rejects NLRB Position That Class Waivers Violate Employee Rights”

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Severson Stands: Long-Term Leaves of Absence are No Longer Reasonable Accommodations Under the ADA

Author: Emily C. Fess

Management-side attorneys and their clients can breathe a sigh of relief after the Supreme Court declined to take up a challenge to the Seventh Circuit’s ruling in Severson v. Heartland Woodcraft, Inc.  872 F.3d 476 (7th Cir. 2017).  In Severson, the Seventh Circuit clarified employers’ obligations under the Americans with Disabilities Act (“ADA”) when it ruled that multi-month leaves of absence are not reasonable accommodations.  Continue reading “Severson Stands: Long-Term Leaves of Absence are No Longer Reasonable Accommodations Under the ADA”

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U.S. Customs and Border Protection Updates Directive on Searches of Electronic Devices

Authors: H. Alan Rothenbuecher and Karly B. Johnson

U.S. Customs and Border Protection (“CBP”) recently updated its 2009 directive pertaining to border searches of electronic devices. The Supreme Court of the United States has deemed warrantless searches by CBP legal and “reasonable” in light of national security concerns. With the advent of this digital age, CBP has now expanded its directive to include searches of electronic devices, which include password-protected laptops, phones, and other handheld devices. Continue reading “U.S. Customs and Border Protection Updates Directive on Searches of Electronic Devices”