August 2018 E-Update


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It’s About Time! DOL Releases Opinion Letters on the FMLA and FLSA

The Department of Labor (DOL) has released six new opinion letters on the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). Opinion letters respond to a specific wage-hour inquiry from an employer or other entity to the DOL, and represent the DOL’s official position on that particular issue. Other employers may then rely on these opinion letters as guidance. For more, click here.

This Month’s Assortment of NLRB Advice Memos – A Day Without Immigrants, Weingarten Rights, and Picketing

A steady stream of Advice Memoranda from the National Labor Relations Board’s Office of the General Counsel (OGC) has continued to issue over the past six months, as we previously discussed in many of our monthly E-updates. Eight additional memos were issued on August 15, 2018, although some were originally prepared years earlier. Of particular interest are the following: For more, click here.

The OFCCP Issues a Flurry of Directives and Other Resources

It has been an exceptionally busy month at the Office of Federal Contract Compliance Programs (OFCCP), which released five Directives and a publication entitled “What Federal Contractors Can Expect,” as well as announcing a new “Contracting Officer Corner” webpage of resources. Directives provide guidance to OFCCP staff or federal contractors on enforcement and compliance policy or procedures, but do not establish legally enforceable rights or obligations. We summarize these documents as follows: For more, click here.


Following Epic Systems, Collective Action Waivers Are Not Barred by the FLSA

The U.S. Court of Appeals for the Sixth Circuit held that, like the National Labor Relations Act (NLRA), the Fair Labor Standards Act (FLSA) does not provide a bar to arbitration agreements that contain a waiver of the right to bring a collective (or class) action. For more, click here.

Employees Need Not “Tender Back” Severance Pay Before Suing Under Title VII or EPA

In McClellan v. Midwest Machining, Inc., the U.S. Court of Appeals for the Sixth Circuit addressed a question of first impression before the federal appellate courts – whether employees must return a severance payment made in exchange for a release of claims before bringing suit under Title VII and the Equal Pay Act (EPA). For more, click here.

Filing of EEOC Charge Is Not a Jurisdictional Prerequisite in Most Federal Jurisdictions

Overturning nearly four decades of precedent, the U.S. Court of Appeals for the Tenth Circuit in Lincoln v. BNSF Railway Co. held that the filing of a charge of discrimination with the Equal Employment Opportunity Commission was not a jurisdictional prerequisite to filing an employment discrimination suit. For more, click here.

Waiver of Drug Testing Requirement Not Required Under NJ’s Medical Marijuana Law

A federal court in New Jersey held that neither the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) nor the New Jersey Law Against Discrimination (NJLAD) requires an employer to waive its drug test requirement for employment. For more, click here.

NLRB Offers Guidance on Solicitation Policies

In two separate opinions this month, the National Labor Relations Board provided guidance on the lawful parameters of solicitation policies for retail and hospital employers. For more, click here.

Listen to the Employee, Not Just the Doctor, Regarding the Employee’s Disability

The U.S. Court of Appeals for the Seventh Circuit rejected an employer’s assertion that the employee was not disabled under the Americans with Disabilities Act because she had been cleared by her doctor to return to work without restrictions, where the employee still complained of physical limitations. For more, click here.

Change in Supervisors Supports Change in Performance Standards

The U.S. Court of Appeals for the Eighth Circuit recently affirmed the proposition that a new supervisor may impose a different set of performance standards. For more, click here.

Unreasonable Insistence on Compliance with Work Rules Creates ADA Liability

An employer who terminated a diabetic employee for violating its “anti-grazing” policy found itself on the wrong side of a jury verdict and liable for almost $450,000 for the employee’s attorneys’ fees. For more, click here.

NLRB Asserts Its Administrative Law Judges Are Validly Appointed

Following the Supreme Court’s decision in Lucia v. SEC, in which it held that the government-wide system used to appoint administrative law judges (ALJs) violates the U.S. Constitution (as discussed in our June 2018 E-Update), the National Labor Relations Board asserts in a press release that its ALJs are validly appointed. For more, click here.


TOP TIP: It’s Time to Update Those Federal Forms and Notices – FMLA, FCRA and the ACA!

Employers should be prepared to update certain significant federal forms and notices under the Family and Medical Leave Act (FMLA), the Fair Credit Reporting Act (FCRA) and the Affordable Care Act (ACA). For more, click here.