Blogs

We are proud to offer a selection of blogs covering different areas of labor and employment law, as well as geographies. Please see below for a brief description of each, or jump to our recent posts.

California Employment Law Blog

Labor and Employment attorneys Keith Chrestionson, Alex Hernaez, Jeff Polsky and Nancy Yaffe discuss a wide variety of legal challenges faced by California employers, including class actions, wage and hour, overtime, discrimination, harassment and privacy issues.
View the California Employment Law Blog

Employment Discrimination Report Blog

The firm's Employment Discrimination Report covers all aspects of employment discrimination and harassment, including new court decisions and legislation, compliance, best practices, interesting trends in workplace relations and employment-related issues affecting employers.
View the Employment Discrimination Report Blog

Immigration View Blog

U.S. immigration law comprises a system of highly complex, intricate, many-layered statutes, regulations, informal agency materials and policies which are often influenced by the current political climate. Anyone attempting to navigate this system needs attorneys well versed in the nuances of this multifaceted process. Join our experienced immigration bloggers as they provide regular updates for employers on the full gamut of immigration issues ranging from hiring, compliance and employment best practices to the latest developments in visa news and coverage of significant immigration-related decisions, as well as practical advice to ease the immigration process.
View the Immigration View Blog

Management & Labor Report

Management & Labor Report is a blog that focuses on trends and developments in labor law. The primary focus is cases before the National Labor Relations Board (NLRB) and the federal courts that have the potential for setting new precedents or modifying existing precedent. Authored by attorneys in Fox Rothschild’s Labor Management Relations practice group, the blog provides insights and analysis of decisions that could potentially have an impact beyond the parties involved. Topics covered include collective bargaining, the relationship and interactions between an employer and union, union elections and other workplace conduct as it applies to both union and non-union settings.
View the Management & Labor Report Blog

Wage & Hour — Developments & Highlights Blog

Mark Tabakman lends his more than 20 years of experience advising clients throughout the country on all aspects of labor relations and employment law, and development of corporate employment policies to Fox's Wage & Hour — Developments & Highlights blog. Join Mark as he discusses issues dealing with class actions, independent contractors, and exemptions.
View the Wage & Hour — Developments & Highlights Blog

Recent Blog Posts

  • Can we Please Stop Using the Term Furlough Without Defining It? What is a “furlough”  when applied to a private business with a non-union workforce in California?  In my view, it is a temporary layoff (or required unpaid leave due to lack of work) with full expectations to return to work.  However, too many California businesses were not clear on what they meant by the term when they “furloughed” workers back in March, and that is causing unnecessary confusion now. When workers were “furloughed” were they provided an anticipated return to work... More
  • Case Highlights the Issue of Collectability of Judgments in FLSA Collective Actions: Is It Dissipation or Investment? A big part of being successful in a lawsuit, for the plaintiffs, and their lawyers, is the ability to collect on a judgment that they might actually secure.  I often represent small or, sometimes, struggling business in FLSA collective actions and Rule 23 class actions.  I see, time after time, plaintiff lawyers make totally outlandish demands and I explain to them the financial fragility of the employer and that a settlement of “something,” whatever that may be, is better than... More
  • California Issues Safe Reopening Playbook Are you tired of Covid checklists yet?  Well you may be, but California recently issued an Employer Playbook for a Safe Reopening that is actually quite good. It includes a concise summary of what to do when there is Covid in your workplace, with links to resources with more information.  There is also a helpful chart about when you can allow an employee to return to work depending on hospitalization vs. not, positive test without symptoms vs. positive test with symptoms,... More
  • Immigrant Visa Processing Changes – EB1 and EB3 advance rapidly; all other employment and fmily categories advance moderately; Coronavirus/DOS Closures cause uncertainty and unpredictability; Visa Office on Priority Dates, Demand, and Predictions In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association). Below are highlights from the most recent “check-in with Charlie” (July 21, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories and his answers to various questions from the... More
  • County Public Health Departments Ratchet Up Enforcement on Businesses of COVID-19 Related Restrictions   Faced with escalating Coronavirus infections in California, county public health departments across the state are ramping up enforcement of COVID-related restrictions on businesses — conducting investigations, imposing fines and shutting down non-compliant facilities. Businesses at risk of enforcement action include those not adhering to mask, face shield, physical distancing and hygiene requirements for employees or customers, limits on the maximum number of customers permitted on premises, requirements that employees be allowed to work from home if their jobs may be... More
  • Payroll Audit Independent Determination Program Is a Bust… for an Obvious Reason! When the USDOL self-reporting program was announced, I was highly skeptical. Even though there seemed to be assurances that no undue enforcement actions would be taken, it just did not seem that employers would voluntarily subject themselves to such government review. Evidently, I was right. The USDOL has announced that this voluntary compliance program, the Payroll Audit Independent Determination (“PAID”) has produced a paltry $7 million in wages due employees. The program ostensibly protects employers if they commit inadvertent overtime and... More
  • July News from the EEOC July has brought the announcement of two six-month pilot programs touted by the EEOC for, it believes, expanding opportunities for parties to resolve Charges of Discrimination voluntarily through mediation and conciliation. While they sound like the same thing, mediation and conciliation actually carry two different meanings in EEOC-world. Here is what the Commission has rolled out. First, mediation is the now-familiar process of using a neutral third party to bring the complaining party and the employer together in person to try to... More
  • Update: DHS Extends Temporary Flexibility for Form I-9, Employment Eligibility Verification; No Further Extensions for NOIs U.S. Immigration and Customs Enforcement (ICE) announced on July 18th that it will provide a 30-day extension to its temporary policy allowing flexibility in the rules related to Form I-9 for employers operating 100% remotely in light of COVID-19. The new expiration date for these accommodations is August 19, 2020. On March 19 due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical... More
  • Understanding California’s New Parent Leave Act Thanks to Rosa Hernandez, a summer associate and soon-to-be 3rd-year student at UC Berkeley Law School for this post. Be honest, you’re getting sick of quarantine with your kids right? It’s okay, we won’t tell anyone. Remember when being a parent was great and kids still had that new baby smell? That early childhood bonding was supposed to prepare us for times like these, right? Back on January 1, 2018, California’s “New Parent Leave Act” began requiring employers to offer 12 weeks... More
  • Philadelphia: Employees May Disclose, Refuse to Work in Unsafe COVID-19 Conditions As many employers begin returning people to work, Philadelphia has passed an ordinance protecting employees who share safety concerns related to COVID-19. The ordinance requires employers to comply with all orders and regulations issued by the Pennsylvania Department of Health or the Philadelphia Department of Health related to COVID-19, specifically the safe workplace and workplace risk mitigation directives. Employers may not take adverse employment action against employees who make a “protected disclosure,” defined as a good-faith communication (or intent to communicate) that... More
  • California to Rollback Reopening Plans as COVID Cases Surge Governor Gavin Newsom announced on Twitter today that the state is rolling back its reopening plans. As a result, restaurants, wineries, movie theaters, family entertainment, zoos, museums, and card rooms statewide are required to close all indoor operations. Bars are required to cease all operations – in- and outdoor. The governor imposed additional restrictions in 30 specified counties (Colusa, Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Madera, Marin, Merced, Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Benito, San... More
  • USDOL Issues Interesting Opinion Letter on Car Manufacturer Incentive Payments Use in Meeting Minimum Wage Requirements The USDOL has been issuing a slew of Opinion Letters of late, under the stewardship of Cheryl M. Stanton, Administrator of the Wage and Hour Division. Many of these deal with bonus issues and how these payments can and should be used by employers vis-à-vis their obligations to be compliant with the FLSA. The agency has issued a new Opinion Letter on the issue of car dealerships using incentive payments from automobile manufacturers to satisfy their minimum wage obligations to... More
  • Can You Fire An Employee for Bringing a Gun to Work? Can an employer fire an employee for bringing a gun to work?  The answer may depend on state law. Many states have “guns-at-work” laws that require employers to allow employees to leave guns in their locked vehicles parked in the employer’s parking lot.  In these states, employers cannot fire employees for exercising their lawful right to bring a gun to work, provided that the employee’s actions comply with the applicable state law.  Whereas, in states without “guns-at-work” laws, employees may generally... More
  • Guide Lists Updated Minimum Wage Rates Across California Keeping track of the minimum wage in California is no small task. There are now 32 localities with higher minimum wage rates than the state. Half Moon Bay and Hayward have joined the list with minimum wage rates that go into effect on Jan. 1, 2021. Novato passed a minimum wage ordinance in 2019 that went into effect on Jan. 1, 2020, and increased again on July 1. Tyreen Torner has completed the mid-2020 update of her helpful chart that contains the... More
  • USDOL States It Will No Longer Routinely Seek Liquidated Damages in Administrative Investigations: A Return to Normalcy The last several years have been quite worrisome to me, as a management side practitioner, on the issue of USDOL agency-initiated liquidated damages assessments. It used to be that only when the USDOL took an entity to court did it seek liquidated damages. Then, some years ago, during the Obama Administration, the agency began seeking liquidated (i.e. double) damages. This was a big hammer for the agency and one that it utilized in almost a routine manner. Well, things have... More
  • Notice Posting Requirements Are – and Remain – Postponed Due to the Coronavirus Pandemic In an early May 2020 decision, the Board declared a temporary pause in charged parties (usually an employer) complying with the NLRB’s standard notice posting remedy in response to the ongoing COVID-19 public health crisis. Thereafter, on May 20, 2020, General Counsel Peter B. Robb issued GC Memo 20-06 and made this temporary change applicable to informal settlement agreements (as a notice posting is typical in such arrangements). A party that is liable for violations of the Act and/or who enters... More
  • San Francisco Passes Emergency Reemployment Ordinance Joining Los Angeles and Long Beach, San Francisco has enacted an ordinance requiring certain employers to recall workers laid off due to the COVID-19 crisis before hiring new employees. Hyunki (John) Jung provides all the details here. As always, check out (or, if you’re so inclined, subscribe to) our Coronavirus Resource page for the latest developments. We understand as well as anyone how difficult it is for employers and HR professionals to keep up with the latest developments in this area... More
  • USMCA Effective July 1, 2020 & TN Visa Update The United States-Mexico-Canada Agreement known as the USMCA is effective July 1, 2020. The USMCA replaces the North American Free Trade Agreement (NAFTA) which expired June 30, 2020. As it relates to US immigration, the USMCA includes comparable provisions as found in the NAFTA for Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. No occupation categories are eliminated or added and there are no numerical limitations for entries under the new provisions. Notably, the USMCA retains all of the occupations... More
  • Maryland Restricts Use of Facial Recognition Technology in Hiring Entering a relatively new frontier in employment discrimination law, the Maryland legislature has passed legislation restricting employers’ use of facial recognition technology in the hiring process. The bill becomes effective on October 1, 2020. Under the new law, Maryland employers may not use a “facial recognition service” for the purpose of creating a “facial template” during an applicant’s interview for employment. The law defines “facial recognition service” as any technology that “analyzes facial features and is used for recognition or persistent... More
  • New Jersey DOL Poster Basically Invites Workers to Claim They Are Not Independent Contractors The State of New Jersey (and many other states) has started to tighten up laws regarding independent contractor status. One troubling component (to management-side practitioners and employers alike) of this New Jersey initiative is to compel employers to post a notice that explains elements of independent contractor law and, essentially, invites workers to file suits and complaints alleging that they are not independent contractors. The poster explains that it is a violation of the law for an employer to misclassify its... More
  • Tips and Tricks for Assessing FFCRA Benefit Payments As this pandemic began to take hold in the U.S., I was the one arguing “there is no way they will shut down all of California, it just isn’t practical!”  Nearly four months later, I stand corrected (with a mightily bruised ego).  With July 4th in our sights, COVID is accelerating across the country and keeping employers on their heels in dealing with still-regular regulatory changes.  Not the least of which is the FFCRA. California has seen two record days of... More
  • Immigrant Visa Processing Changes – EB1 and EB5 remain current with slight movement in EB3 and EB-2; Coronavirus/DOS Closures cause uncertainty and unpredictability; Visa Office on Priority Dates, Demand, and Predictions In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association). Below are highlights from the most recent “check-in with Charlie” (June 17, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories and his answers to various questions from the... More
  • Supreme Court: LGBTQ Employees Protected In an historic decision, the Supreme Court ruled 6-3 last week that Title VII’s prohibition on employment discrimination protects employees on the basis of sexual orientation and gender identity. In doing so, the Court held that discrimination based on sexual orientation or gender identity necessarily involves discrimination on the basis of sex, which Title VII expressly prohibits.   As regular readers of our blog will recall, we have covered this issue for quite some time, including the cases that made their way... More
  • New NLRB Case Investigation Guidelines Change How Regions Will Handle Particular Evidence and Witness Testimony On June 17, 2020, National Labor Relations Board General Counsel Peter Robb issued GC Memo 20-08 (“Memo”), providing Regional offices new directives for taking certain witness testimony and accepting audio/video recording evidence in unfair labor practice (“ULP”) investigations. First, the Memo instructs Regions allow a charged party – in most cases an employer – to be present and observe the “substantive communications” with a former supervisor or agent if that individual is now testifying against the charged party about a contested... More
  • Trump’s Executive Order Suspends Nonimmigrant visas, including H-1B, L-1 and J-1, for the rest of the year Yesterday, June 22, 2020, President Trump issued the anticipated Proclamation suspending the entry into the US of certain nonimmigrant visa holders.  Specifically, the following new restrictions are in effect 6/24/2020: The executive order applies to foreign nationals who seek to enter the United States in H1B, H-4, H2B, L-1, or L-2 status (as well as all accompanying or following to join family members). The order also applies to those requesting admission in J status “…who are participating in an intern, trainee, teacher,... More
  • The FLSA and Temperature Checks: The Doctrine of “Integral and Indispensable” Comes to the Forefront The other day I went to the eye doctor and, before I could go in, an employee checked my temperature. This phenomenon is going to become perhaps a constant fact of life when businesses open, employees return to work and employers want to be sure that they are virus-free and the workplace is safe. That is all well and good but, for employers, the issue arises of whether submitting to such a check is compensable time. That is an uncertain... More
  • A Primer on Getting Employees Back to Production With restrictions beginning to soften following the months-long COVID-19 crisis, and producers eager to get back to production, but daunted by the economic and legal challenges of the pandemic production protocols, Fox Rothschild has launched a pro bono initiative to support financially impacted producers and production companies.  Earlier this week, a cross-country, collaborative team of Fox attorneys discussed the challenges of getting back to production. Here is a list of the filming restrictions we discussed as well as some frequently... More
  • COVID-19 Update: Travel Restrictions with Canada and Mexico The U.S. Department of Homeland Security (DHS) announced an extension of restrictions limiting non-essential travel at U.S. land ports of entry with Canada and Mexico for an additional 30 days. The government indicates the travel restrictions have been successful in reducing the spread of COVID-19 while still maintaining essential trade and travel. The travel restrictions, after having been extended multiple times, were previously set to expire on June 22, 2020. Non-essential travel includes travel that considered tourism or recreational in... More
  • California Provides a Free Harassment Prevention Online Tool for Employees With so many businesses either re-opening or planning to reopen in California, let’s not forget that all employees (not just supervisors) must be trained in harassment prevention before year end.  Yes, that’s right, all employees. Some good news.  The DFEH finally has a free online tool for that training.  I spent an hour watching it yesterday, and it was pretty entertaining.  It has some videos produced by David Schwimmer, #thatsharasssment, that are quite good.  It also uses a video from New... More
  • DHS Extends Temporary flexibility for Form I-9, Employment Eligibility Verification, and due dates for Responding to Notices of Inspection In May, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. On March 19 due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the... More
  • FLSA Settlement Principles Illustrated by Recent Case: A Primer on What Is Appropriate When FLSA lawsuits are settled, the matter must go before a federal judge for approval, as opposed to when a “demand letter” is sent and the parties settle prior to suit. There are many elements that a court must look at to determine if the settlement is appropriate and the recent case of Fritz v Terminite, Inc. provides a clear application of those principles. The case was filed in federal court in the District of New Jersey. The plaintiff was an... More
  • Wave of Wage-Hour Lawsuits Coming? Beware of the Danger Zones I have been writing about wage hour issues that are implicated or raised by the continuing COVID-19 situation. Well, here’s another one. I warn that as businesses start to open up (or not), employees (and, more to the point, plaintiff-side lawyers) will be seeking to sue employers on a number of grounds, some of which rely on circumstances that might have well been beyond the control of their employers. To start with, employers must be aware that they will not... More
  • Chinese Student Alert – President Trump Executive Order On May 29, 2020, President Trump issued yet another immigration-related Executive Order.   This one is entitled, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,” and can be found here. The proclamation goes into effect today, June 1, 2020, and its stated purpose is to restrict certain Chinese nationals from entering the United States on F Student visas or J Exchange Visitor visas associated with entities in the People’s Republic... More
  • Premium Processing Resumes: June 2020 Phase-In Dates On Friday, May 29, 2020, U.S. Citizenship and Immigration Services (USCIS) announced plans for the phased-in resumption of premium processing for eligible I-140 Immigrant Petition for Alien Worker petitions and eligible I-129 Nonimmigrant Worker petitions. (See USCIS website at https://www.uscis.gov/news/alerts/uscis-resumes-premium-processing-certain-petitions.) USCIS temporarily suspended premium processing availability for all eligible Form I-129 and I-140 petitions on March 20, 2020, due to the coronavirus (COVID-19) national emergency.  After nearly two months without premium processing, this is welcome news. Of course, the announcement includes... More
  • USDOL Clarifies the Fluctuating Work Week Method of Paying Overtime and Its Relationship to Provision of Bonuses: Keep Those Interpretations Coming! The USDOL has been pretty busy lately issuing new rules and interpretations about FLSA issues, including vague, nuanced issues like the inclusion (or not) of bonuses in the regular rate and the circumstances under which employers can utilize bonuses. The agency has again issued such a clarification allowing employers to provide bonuses (and hazard pay) to workers paid on a “fluctuating workweek” method. The agency explains that these changes will give employers new freedom to pay workers in the midst... More
  • COVID-19 Update: USCIS to reopen June 4 on limited basis On May 27, 2020 U.S. Citizenship and Immigration Services announced that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.  Routine in-person services at USCIS field offices, asylum offices and application support centers (ASCs) has been suspended since March 18 to help slow the spread of coronavirus (COVID-19).  USCIS is following the Centers for Disease Control and Prevention’s guidelines to protect our workforce and the public.  As services begin to reopen,... More
  • In Major Move, USDOL Makes It Easier for Employers to Claim the Commission Exemption of 29 USC 207(i)—Outstanding! I have handled many cases involving the so-called commission exemption under the Fair Labor Standards Act, Section 207(i), and I can safely say that often a big stumbling block for the defendant (i.e. employer) is to show that it is in a “retail” industry. Absent that showing, the exemption will not apply, even if the worker earns at least 50% of his weekly compensation from commission and his hourly earnings are at least time and one-half of the minimum wage.... More
  • Federal Court Affirms NLRB Ruling Limiting a Union’s Right to Employer’s Financial Information On April 29, 2020, the Ninth Circuit Court of Appeals affirmed a National Labor Relations Board decision where an employer was lawfully permitted to refuse a union’s request for financial information because it appropriately clarified its previous “inability to pay” statements and explained that it was only unwilling, not unable, to meet the union’s wage demands.  Normally, when an employer justifies its bargaining position by claiming an inability to pay a union’s demands, the union may request financial documents sufficient... More
  • What Employers Should Know about COVID-19 and the ADA COVID-19 has changed workplaces across the country. The virus’s status as a pandemic has given employers more tools to protect employees from the risks of infection at work. While the ADA normally restricts employers from making medical inquiries to employees or conducting medical exams at work, the COVID-19 pandemic has relaxed some of these restrictions. For example, employers can now ask employees who call in sick if they are experiencing symptoms of the pandemic – such as fever, chills, cough, shortness... More
  • EEOC Suspends Issuing Case Closure Documents Unless Requested The COVID-19 pandemic has caused the U.S. Equal Employment Opportunity Commission (EEOC) to announce that it has temporarily suspended issuing case closure documents, such as right-to-sue notices, unless requested by the claimant. Nothing in the EEOC’s announcement precludes claimants from filing new EEOC charges. Details in this client alert.... More
  • The NLRB is Resuming Elections on April 6, 2020 Without Providing Guidance on Voter Safety By announcement on April 1, 2020, the NLRB resumed representation elections beginning on April 6, 2020.  Previously, the NLRB had suspended elections until April 3, 2020.  The details on elections will be decided on a case-by-case basis by the Board’s regional directors. Board Chairman John F. Ring provided the following reasons for resuming elections:  “Conducting representation elections is core to the NLRB’s mission, and ensuring elections are carried out safely and effectively is one of our primary responsibilities. Two weeks ago,... More
  • The Coronavirus and Unionized Employees: Issues Options and Strategies Private sector employers with unionized employees and even non-union employees must be especially careful when addressing certain workforce concerns connected with the coronavirus outbreak.  Below, we will address common issues that may arise in union facilities during this crisis. Analyze the Contract Before Making Changes to the Workforce If there is a current collective bargaining agreement (CBA), it may provide the employer with the authority to make workplace changes, such as reducing schedules or laying off employees, to address the crisis. Even if the... More
  • NLRB Corrects Defect in Withdrawal of Union Recognition Doctrine Employers have been privileged to withdraw recognition of a union when presented with objective evidence that the union has lost majority support of employees, but have faced significant legal risks in doing so under NLRB precedent.  Some of this legal risk has been mitigated by the NLRB’s decision in Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019).  This decision not only clarifies some aspects of the law in this area, but also presents a new framework for addressing the issue... More
  • NLRB Delays Implementation of Election Rule Changes Due to the coronavirus outbreak, the NLRB has delayed its roll out of amendments to the “quickie” election rules, which we discussed in a previous post.  Instead of becoming effective on April 16, 2020, the rule changes will now be effective on May 30, 2020.  The scope of the crisis caused by the coronavirus outbreak may require further delays.  Stay tuned. Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.... More
  • NJ Issues Report, Recommendations on Stopping Sexual Harassment The New Jersey Division of Civil Rights has issued a report on sexual harassment, but what does it mean for workplaces in the state? The report comes as a result of three public hearings held in 2019 by the Division of Civil Rights in partnership with the New Jersey Coalition Against Sexual Assault and the Rutgers Law School International Human Rights Clinic. The goal of the project was to hear from New Jerseyans about their experiences in the workplace with sexual... More
  • For Employers Facing a Discrimination Claim, Being Wrong Can Also Mean Being Right (or, at Least, Being Nondiscriminatory). What happens if an employer takes adverse action against an employee based on a legitimate, nondiscriminatory reason that later turns out to be wrong? Suppose, for example, an employer fires an employee based on a genuine belief that the employee violated the employer’s policies, but it turns out that, in fact, the employee did not. Is the employer now susceptible to a Title VII discrimination claim based on its mistaken, yet honest, belief? According to a recent opinion from the... More
  • Appeals Court Rejects Disability Discrimination Claim of Employee with Supervisor-Induced Stress and Migraines When an employee requests an accommodation or asserts a claim under the Americans with Disabilities Act, an employer’s second question—right after “Are we even covered by the ADA?”—will likely be:  “Did/does the employee have a disability?” (Claims from employees who are merely perceived as disabled are a topic for another day.)  The definition of a disability has two parts.  First, it must be “a physical or mental impairment” and, second, it must “substantially limit one or more major life activities.” ... More
  • NLRB modifies rule concerning workplace changes For many years, the NLRB has required evidence of a “clear and unmistakable” waiver by unions of the duty to bargain with management over workplace changes.  Now, after prodding from some Courts of Appeals, the NLRB has changed its standard: employer changes to workplace conditions will only require evidence that the change is “covered” by a collective bargaining agreement.  This means that the NLRB will not require hyper-specific language or other types of evidence to find a bargaining waiver on... More
  • NLRB Makes Significant Changes to “Quickie” Election Rule The National Labor Relations Board recently scaled back the 2015 “quickie” election rule, which had sped up the timelines for conducting union elections.  Speeding up the process provided an advantage to unions by setting short deadlines that often ambushed employers, leaving them with limited time to react to the election petition.  The new rule offers welcome relief to employers and adds more time to address pre-election issues. The new rule modifies the 2015 “quickie” election rule in the following significant ways: Pre-Election... More
  • NLRB may revisit the limits of profane employee speech protected by federal labor law While it may come as a surprise, the NLRB has long held that employees are sometimes entitled to use profane language while engaging in labor activities.  In recent years, the Board has found that employee speech was protected where: An employee posted online that his supervisor was a “NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!!” while also noting an upcoming union election. An employee used racist language while on a picket... More