Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers

Scott F. Cooper and Brooke T. Iley

As the breaking news reaffirms in graphic detail on an almost daily basis, we are in a transformative time when it comes to how claims of harassment are reported and handled in the workplace. From Hollywood to Rockefeller Center, and everywhere in-between, employers must be prepared. On December 15, 2017, Blank Rome’s Labor and Employment co-chairs, Scott Cooper and Brooke Iley, held an emergency briefing by webinar entitled: “The #MeToo Movement: Are You Prepared?” Continue reading “Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers”

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”

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”

The NLRB Pushes Protections for Social Media Comments to the “Outer-Bounds” of the NLRA

Thomas J. Szymanski

Enacted in 1935, the National Labor Relations Act (“NLRA”) was designed, among other things, to protect the rights of employees and employers, including protecting an employee’s right to engage in protected concerted activity in the workplace, such as complaining to other employees about her manager or terms and conditions of employment, without fear of retaliation by his or her employer. The National Labor Relations Board (“NLRB”), an independent federal agency with five members appointed by the president, enforces the NLRA and effectively controls its interpretation and application, subject to limited review by the courts. In less than a decade, the NLRB of the Obama administration extended the protections of the NLRA—in ways some would say were never contemplated by Congress—to employees’ work-related conversations conducted on social media, such as Facebook and Twitter. Those protections apply regardless of whether the employee is represented by a union or not. With this expansion of protection for social media activities, employers must carefully consider the NLRB’s decisions, or else proceed at their own peril. Continue reading “The NLRB Pushes Protections for Social Media Comments to the “Outer-Bounds” of the NLRA”

Employers: Make Sure Your Settlement Agreement Gets You What You Want!

Scott F. Cooper

On September 11, 2017, the United States Court of Appeals for the Third Circuit revived a lawsuit under the Family and Medical Leave Act (“FMLA”) that the employer claimed was barred by settlement of an employee’s workers’ compensation claim.

The case of Zuber v. Boscov’s provides valuable lessons for employers who think they have concluded matters with an employee through a settlement only to find out that not all claims were released. Continue reading “Employers: Make Sure Your Settlement Agreement Gets You What You Want!”