Author: Blank Rome LLP

Employers Score Major Win as Predicted Changes at National Labor Relations Board Start to Come True

NLRB Reverses Landmark Browning-Ferris Decision and Loosens Test for Joint Employer Status

Scott F. Cooper

On Thursday, December 14, 2017, employers scored a significant victory at the National Labor Relations Board. The Board, in a straight 3-2 partisan vote, reversed its 2015 decision in Browning-Ferris Industries and eliminated the rule that employers and their contractors or franchisees can be deemed a “joint employer” even when one company does not exert direct control over the second entity’s workers.

In Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., NLRB Chair Philip Miscimarra, joined by the two newest NLRB board members, William Emanuel and Marvin Kaplan, significantly reduced the scope of joint employer status in reversing BFI. The issue over the scope of joint employer status at the Board has been simmering for some time, as NLRB Chair Miscimarra wrote a dissenting opinion in the 2015 BFI decision, which was issued under the Obama administration when Democrat members held the Board majority. Continue reading “Employers Score Major Win as Predicted Changes at National Labor Relations Board Start to Come True”

Congress’ New Tax Law—Excise Tax Coming on Compensation of Tax-Exempt Organization Executives

Daniel L. Morgan

The Tax Cuts and Jobs Act (the “Act”), which was agreed upon by the House/Senate Conference Committee last week, includes a provision that imposes an excise tax equal to the corporate tax rate—which is 21 percent under the Act—on certain compensation paid to employees of tax-exempt entities, including not only 501(c)(3) organizations, but also 501(c)(4) and 501(c)(6) organizations, as well as governmental employers and political organizations.

Under the Act, an employer subject to the new rules would be required to pay the excise tax with respect to compensation paid to any of its five most highly compensated employees (referred to under the Act as “Covered Employees”) in two separate instances. Continue reading “Congress’ New Tax Law—Excise Tax Coming on Compensation of Tax-Exempt Organization Executives”

NLRB Chairman Miscimarra’s Last Stand – Bye-Bye “Micro Units”

Jason E. Reisman

Well, I was wrong. In my last post, I said that it looked like the “quickie election” rules were up next for the National Labor Relations Board to address. Clearly, those rules are still on the radar, as public input is in progress.

However, Republican-appointed Chairman Phil Miscimarra is making up for all of the labor-friendly opinions during Obama’s administration where he found himself in the minority, left to argue seemingly in vain in some classic dissenting opinions. Now, he’s been leading the majority charge to “right” as many Obama Board “wrongs” as possible before stepping away from the Board on Saturday. Continue reading “NLRB Chairman Miscimarra’s Last Stand – Bye-Bye “Micro Units””

NLRB Kicks Things into Gear – To Benefit Employers!

Jason E. Reisman

After swearing in the new general counsel, Peter Robb, last month, and given the full complement of members, the National Labor Relations Board has kick-started its efforts to right the wrongs of the Obama Board and make life a little easier for employers.

Led by Chairman Phil Miscimarra (a Republican who unfortunately is stepping down at the end of his term next week), the NLRB has attacked and reversed two critical issues that have plagued employers for the last several years: Continue reading “NLRB Kicks Things into Gear – To Benefit Employers!”

A Call to Action—Stamping Out Workplace Harassment

Jason E. Reisman

“This” isn’t just about Harvey Weinstein, Roy Moore, Kevin Spacey, Al Franken, Matt Lauer, or others in the news. “This” isn’t just about politicians, Hollywood, and the media.

“This” is a real problem in workplaces across the country. Every time we hear a story that sounds surreal, we want to believe it’s some type of joke. But, it never is. Although the law—and common sense—make clear that such conduct is not acceptable, it still happens. It’s been happening in the employment setting for decades. Now, with the latest revelations being broadcast across the news, it’s finally getting more widespread attention. And, “this” needs attention, as well as focused efforts at eradication. Continue reading “A Call to Action—Stamping Out Workplace Harassment”

Just in Time for the Holidays

Anthony A. Mingione

New York State is considering new regulations that will restrict the ability of service industry employers to utilize “on-call” or “just in time” scheduling practices for shift workers. These scheduling practices are common in many industries and generally allow employers to schedule, cancel, or cut workers’ shifts with little or no advance notice.

Employees testifying before the State Department of Labor said that these practices often leave workers unable to manage child care schedules and personal engagements, and prevent them from taking second jobs. Business representatives argued they require flexibility and that employers need to have these scheduling practices available to adapt to unpredictable circumstances, such as employees not attending work, unexpected customer demands, or inclement weather. Continue reading “Just in Time for the Holidays”

The Salary Privacy Act—Stacking the Deck

Story E. Cunningham

Job interviews and salary negotiations have always been a sort of poker game. Now, in California, employers are required to show their hands, while candidates can keep their cards close to the vest.

The Salary Privacy Bill, AB 168, enacted by Gov. Jerry Brown on October 12, 2017, prohibits California employers from asking job candidates about their prior salaries, either orally or in writing, and prohibits employers from using an agent to get the information. The law applies to both public and private employers of every shape and size. Continue reading “The Salary Privacy Act—Stacking the Deck”

DOJ Reverses Course—Title VII Does Not Cover Gender Identity

Susan L. Bickley and Emery Gullickson Richards

On October 5, 2017, Attorney General Jeff Sessions reversed the Department of Justice’s (“DOJ”) stance that gender identity is protected as part of the prohibition against “sex” discrimination in Title VII of the Civil Rights Act of 1964. Sessions issued a letter outlining this position to all U.S. attorneys and the leading officials of all federal agencies, stating that while Title VII provides various protections for transgender individuals, the statute “does not prohibit discrimination based on gender identity per se, including transgender status.” Continue reading “DOJ Reverses Course—Title VII Does Not Cover Gender Identity”

Trick or Treat? New York City Salary History Ban Becomes Effective October 31

Anthony A. Mingione

Earlier this year, New York City amended its Human Rights Law to make it unlawful for an employer to ask about or rely on a prospective employee’s prior salary history in making hiring decisions. The amendment bans both direct inquiries from applicants and attempts at learning applicants’ previous salaries from indirect sources, such as independent research or third party conversations.

The legislation becomes effective on October 31, 2017, so New York City employers should take advantage of the remaining time before the effective date to conform their hiring practices to the new restrictions. Continue reading “Trick or Treat? New York City Salary History Ban Becomes Effective October 31”

Seventh Circuit Rebukes EEOC—Extended Leave Is Not a Reasonable Accommodation under the ADA

Susan L. Bickley and Emery G. Richards

In a victory for employers in Illinois, Indiana, and Wisconsin, the Seventh Circuit ruled recently that the Americans with Disabilities Act (“ADA”) does not require employers to give workers extended additional leave after their allotment under the Family and Medical Leave Act (“FMLA”) runs out. The Court’s ruling in Severson v. Heartland Woodcraft, Inc. is the strongest rejection of the U.S. Equal Employment Opportunity Commission’s (“EEOC”) long-held and vigorously advocated position that long-term leaves are a required form of reasonable accommodation. Continue reading “Seventh Circuit Rebukes EEOC—Extended Leave Is Not a Reasonable Accommodation under the ADA”