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.


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).


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.


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?


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.


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.


“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.”


Berwick vs. Uber: Small Decision, Uber-Sized Headache

Uber-misclassificationIn a somewhat unexpected, but not that surprising, ruling, the California Labor Commissioner, on June 3, 2015, issued a 12-page decision in favor of a pro se plaintiff driver against mighty Uber Technologies, Inc. for misclassification of the plaintiff as an independent contractor instead of an employee. The award though a modest $4,152.20 may have a multi-million dollar impact upon Uber and its competitors, particularly their business model and foundational argument that they are “just a neutral technological platform.”

The path started out difficult for Uber. The Labor Commissioner noted that California law presumes that a worker providing personal, not business, services is an employee, shifting the burden of proof of independent-contractor status to the employer. And, that burden, thanks to the Berwick ruling, just got Uber-heavy for the burgeoning tech-ride industry.


Union or Not, the NLRB Has Employers (and Their Employee Handbooks) In Its Sights

NLRB-union-election-ruleHere’s something that often comes as a surprise to my clients with a non-union employee base: the NLRA (National Labor Relations Act) likely applies even without any union employees.

Yep – you read that right.

In fact, the NLRA’s application is quite broad, covering the vast majority of private employers in the United States.

And because there aren’t already enough rules and regulations that employers need to comply with (read that again, with sarcasm), the NLRB has been making things even more difficult for employers lately, paging through employee handbooks and going line by line to find potential issues. In particular, the NLRB has been taking a hard stance against employers whose handbooks set forth policies that try to zip the lips of disgruntled employees when it comes to talking about things like how much they (don’t) make and how horrible their bosses are.


Employee Misclassification in the Entertainment Industry

flim-productionEmployee misclassification is one of the leading labor abuses in the country. In fact, in recent years, both the Internal Revenue Service and the U.S. Department of Labor have launched a misclassification initiative to combat this pervasive issue.

Misclassification runs rampant in the entertainment industry, where terms like “low pay/no pay”, “copy, credit, meals”, and “deferred payment” get thrown around freely in order to meet budget. With the ease of access to affordable high quality recording equipment and editing software, the fast-growing independent market has only added to the I.R.S. and U.S. Department of Labor’s frustrations in this regard.

The Fair Labor Standards Act defines the term “employ” very broadly as follows: to “suffer or permit to work.” Most individuals providing services to a for-profit business will be deemed an employee under the law unless a specific exclusion applies. A good rule of thumb is this: if you are asking someone to perform work that is benefitting you, start with the assumption that they are your employee, unless an exception proves otherwise.

While by no means a comprehensive list of all “employee misclassification” concerns, here is a brief overview of three of the most common misclassifications, and when and how they can lawfully be applied to support your project.