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Department of Labor Announces Proposed Joint Employer Status Rule

Authors: W. Eric Baisden, Adam Primm

On April 1, 2019, employers received good news with the Department of Labor’s (“DOL”) proposed regulation limiting joint employer liability. As expected (see prior alert regarding NLRB rulemaking), the proposed rule narrows when companies can be considered a joint employer.

Continue reading “Department of Labor Announces Proposed Joint Employer Status Rule”

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California Court Distinguishes U.S. Supreme Court Ruling Reaffirms PAGA Claims Are Not Subject To Mandatory Arbitration/N.J. Amendment Invalidates Mandatory Arbitration

Authors: Eric Baisden and Adam Primm

Last month, a California Court of Appeal reaffirmed that California’s Private Attorney General Act (“PAGA”) is outside the scope of the Federal Arbitration Act (“FAA”) and the Supreme Court’s 2018 opinion in Epic Systems v. Lewis (click to see our summary of Epic Systems), confirming what many practitioners already believed. Continue reading “California Court Distinguishes U.S. Supreme Court Ruling Reaffirms PAGA Claims Are Not Subject To Mandatory Arbitration/N.J. Amendment Invalidates Mandatory Arbitration”

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NLRB Advice Memoranda Provides Guidance on Employer Work Rules and Social Media

The National Labor Relations Board released a series of advice memoranda this week, two of which applied the new Boeing test to determine if a company rule or policy unlawfully restricts employees’ Section 7 right to engage in protected concerted conduct. The Boeing test overturned the NLRB’s 2004 decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). For a discussion of the Boeing decision, see our December 15, 2017 bulletin.

Continue reading “NLRB Advice Memoranda Provides Guidance on Employer Work Rules and Social Media”

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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”