DOJ Backs Class Action Waivers

The United States Department of Justice (DOL) has made an about face and now takes the position that class action waivers in arbitration agreements are enforceable.   The change in position from the Trump Administration’s DOJ has gained national headlines. The Courts of Appeal are split on the enforceability of these waivers, while the National Labor Relations Board maintains they are unenforceable.

The Obama-era DOJ agreed with the National Labor Relations Board’s position that such waivers are unenforceable because they infringe on employees’ collective bargaining rights. The current DOJ, acting in accordance with the executive branch’s policy shift as a result of the presidential election, now takes the position that such waivers are enforceable unless they are inconsistent with arbitration-neutral rules of contract validity.

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Alphabet Soup — Changes to the Affordable Care Act

With the new Trump administration and Republican control of Congress, there has been a lot of discussion about eliminating the Affordable Care Act and replacing it with a different set of rules.  Legislation has passed the House but not the Senate, and it appears that legislative changes are going to be much slower than anticipated.

However, there are many other changes to the ACA that do not require legislation.  Here are a few of those changes:

Rulemaking about coverage for contraception:  There have been several lawsuits about the requirement to provide contraceptive coverage if the employer is a religious organization or has moral objections. The Trump administration is in the process of issuing a broad rule that would permit for-profit companies (including publicly traded companies) to choose not to provide coverage for contraceptives if the company has a religious or moral objection.  The effect of that will be that women covered under those policies may seek to be covered under a spouse’s policy or through the exchanges in order to obtain that coverage.

Shorter sign up window for 2018: The administration has said there will be a 45 day window for sign up.  There has been less advertising.  Some commentators believe that this means fewer healthy people will sign up because only sick people will be persistent when it is more difficult to sign up.  If this is true, it could further burden the exchanges.

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One Racial Slur is One Too Many, Rules Third Circuit

Is a single racial slur by an employee’s supervisor enough to create a hostile work environment under § 1981 of the Civil Rights Act of 1866?  The answer is yes according to the Third Circuit Court of Appeal’s decision in Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017).

In Castleberry, two African American males were employed as general laborers.  They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n[****]r-rigged” the fence.  The incident was confirmed by their coworkers and reported thereafter by the employees to a superior.  Two weeks later, they were fired without explanation (and they were subsequently rehired, only to be fired again for “lack of work”).

The employees filed suit alleging harassment, discrimination, and retaliation in violation of 42 U.S.C. § 1981.  The trial court dismissed the employees’ harassment claim because it determined the facts as pleaded did not support a finding that the harassment was pervasive and regular.

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Mixed Messages on LGBT Protections

NYC Guidelines Strengthen Transgender Protections in Employment; NC Law Eliminates Local LGBT Protections Altogether.  Confused, Anyone?

I don’t envy employers these days. It ain’t easy staying on top of all of the federal, state, and local employment laws and regulations out there at the moment. And if you’re an employer with employees in multiple states across our great country, forget about it. (On second thought, don’t forget about it, just delegate figuring that mess out to your favorite employment lawyer.)

Case-in-point, the many and varied laws out there regarding the protections afforded LGBT employees.

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A Recipe for Burrito Disaster: Twitter and the NLRA

In Havertown, Pennsylvania, Chipotle recently had some negative publicity and, for once, E. coli was not the culprit. Instead, James Kennedy, a 38-year-old war veteran, was terminated from Chipotle, after criticizing the company on Twitter and for circulating a petition in store regarding scheduled breaks. Kennedy sued, alleging that his termination violated the NLRA.

One of Kennedy’s tweets contained a news article regarding hourly workers having to work on snow days while other workers were off. The tweet referenced Chipotle’s communications director, asking, “Snow day for ‘top performers’ Chris Arnold?”

Another tweet involved a reply to a customer who tweeted “Free Chipotle is the best thanks.” Kennedy’s response: “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” (To answer Kennedy’s question, in Philadelphia, the cost is $7.80 before tax – without guacamole, of course).

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I Resolve . . . Not to Get Sued for Religious Discrimination and Harassment

nye-resolutionsAs we close the books on 2015, fueled in no small part by the terrorist attacks in Paris and San Bernardino, the immigration crisis in Europe, our own crazy election-cycle politics, etc., etc., there is a palpable anti-Muslim rhetoric that’s plowing its way through social media and, quite possibly, making its way right to your company water cooler. And, as if we needed more fuel for the fire, religious awareness (and sometimes, real or perceived religious intolerance) is heightened during the holiday season.

It’s an employer’s perfect [snow]storm.

As put mildly by the Society for Human Resources Management (SHRM), terrorist attacks by Muslim extremists “can incite some employees to question, distrust, retaliate against and even harass Muslim co-workers.”

But as employers well know, there’s this little law called Title VII that prohibits discrimination and harassment in the workplace on the basis of religion. Which means that an employee’s anti-Muslim rant could get his employer sued.

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It Ain’t Over…Managing Weighty Workers Before They Manage You

employee obesityBecause this is exactly what you want to hear after you’ve gorged yourself on turkey, stuffing, and pumpkin pie over the last several days . . .

Earlier this month, the Centers for Disease Control issued a report confirming what we already know: Americans are getting bigger, but not necessarily better. Bigger, as in, time to cut out the butter.

According to the CDC’s report, nearly 38% of Americans are considered obese (defined as anyone with a BMI ≥ 30). Add to that the American Medical Association’s recognition in 2013 of obesity as a disease and you are talking about a lot of “diseased” Americans (which will soon enough lead to a lot of deceased Americans, but I digress; pardon me while I step down from my [plyo]box).

Disease? You can probably see where this is headed…

So, why should employers care about obesity?

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Labor Strikes Back: The New NLRB Initiatives

unions-NLRBWhile private sector union representation has been declining for decades, the last few years have ushered in a resurgence of union initiatives.  Importantly, these efforts have been fueled by a labor friendly National Labor Relations Board (“Board”) that has embarked on unprecedented programs to allow for: so-called “ambush” elections; the expansion of the doctrine of joint employment; review of independent contractor misclassification issues concerning bargaining unit issues; expansion of employee protections for the use of social media; and intrusion upon “core” employer prerogatives under the “guise” of protecting “concerted activity” under the National Labor Relations Act (“ACT”).

At the same time, unions have begun to fund grass roots initiatives in an attempt to unionize the service sector industry, recognizing that traditional manufacturing jobs are at best stable or decreasing.  Accordingly, employers, more so than the last 30 years, have to understand and plan for these developments.  How long these initiatives will continue may well be determined by the 2016 election. In the meantime, however, it is prudent to adopt a wide-ranging program on union avoidance and management training as well as reviewing worker status and employee handbooks as further discussed below.

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California Equal Pay a Reality In 2016

California Fair Pay ActCalifornia employers, prepare yourselves (again). The State has added a larger arrow to the plaintiff’s quiver – more equal pay.

Decades before the Lily Ledbetter Fair Pay Act was implemented, California had a comparable equal pay statute in place. Enacted in 1949, the California Equal Pay Act (“Old Act”) provided equal pay protections to the opposite sex. But, the Old Act did not age well, its flaws uncovered. Critics bemoaned the Old Act’s limitations, including a difficult burden of proof, ambiguous affirmative defense, and the lack of an anti-retaliation provision found in other employment statutes. The time had come for change.

In October 2015, California’s Governor Jerry Brown signed the California Fair Pay Act (S.B. 358), which amends California Labor Code § 1197.5, and becomes effective on January 1, 2016 (“New Act”). The New Act corrects the perceived weaknesses in the Old Act.

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“Like” It or Not, It’s Protected Activity Under the NLRA

Facebook_NLRAIf I’ve heard it once, I’ve heard it a million times:  “It’s employment at will in this state.  I can fire my employees for any reason or no reason at all.”  Well, if that “any reason” or “no reason” has something to do with social-media based condemnation of your company, you might want to think again before permanently “unfriending” your employee.

This past week, the Second Circuit affirmed an NLRB ruling that an employee’s Facebook post criticizing her employer (the “Triple Play Bar and Grille”) in connection with its income tax withholding practices (trying to keep this post PG, but there may have been an expletive or two in there) and a colleague’s “like” of the post amounted to protected concerted activity under the NLRA.  This meant that their subsequent terminations were a big NLRA “no-no.”

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