August 2019 E-Update


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NLRB Issues Advice Memo on Social Media Rules

The National Labor Relations Board released yet another batch of Advice Memoranda this month. Advice Memoranda contain the recommendations of the Office of General Counsel to the Board on specific issues. For more, click here.

NLRB Expands Property Owners’ Rights to Deny Third Party Access

In Bexar County Performing Arts Center Foundation, the National Labor Relations Board, in a 3-1 decision, overruled existing precedent, and established a new framework to determine whether a property owner has lawfully prohibited employees of one of its licensees from accessing the property to engage in protected activity. For more, click here.

NLRB Issues Management-Friendly Proposed Rule to Revise Election Procedures

A majority National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking proposing three amendments to so-called “blocking charges,” the voluntary recognition bar, and recognition in the construction industry. For more, click here.

DOL Issues Opinion Letter on FMLA Leave for School Meetings to Discuss IEPs

The Department of Labor (DOL) has released a new opinion letter under the Family and Medical Leave Act (FMLA). Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. For more, click here.

The OFCCP On Fire – Compliance Assistance Guides, Proposed Religious Exemption Rule, and Contractor Assistance Portal

It has been another busy month at the Office of Federal Contract Compliance Programs, which has issued a dizzying array of new resources for government contractors, as follows: For more, click here.

Court Finds Bargaining Agreement Vests Lifetime Medical Benefits for Retirees

In Kelly v. Honeywell International, Inc., the U.S. Court of Appeals for the Second Circuit held that an effects bargaining agreement (“EBA”) unambiguously vested medical coverage for retirees who retired prior to the expiration of the EBA and their surviving spouses. For more, click here.


No Violation of NLRA for Misclassification of Workers as Independent Contractors

In yet another retreat from the positions staked out by the National Labor Relations Board under the Obama administration, the current Board has now stated that the misclassification of workers as independent contractors is not a violation of the National Labor Relations Act. For more, click here.

Perfect Attendance Program Violated the FMLA

The U.S. Court of Appeals for the Sixth Circuit found that a company’s perfect attendance program, which excused paid time off but not Family and Medical Leave Act leave or certain other unpaid time off, violated the FMLA. For more, click here.

Employee Must Participate in Interactive Reasonable Accommodation Process

Reiterating perhaps an obvious point, the U.S. Court of Appeals for the Eighth Circuit rejected an employee’s failure to accommodate claim under the Americans with Disabilities Act in part because of the employee’s lack of participation in the reasonable accommodations process. For more, click here.

Bonuses Paid By Third Party Not Necessarily Included in Employee’s Regular Rate

The U.S. Court of Appeals for the Third Circuit rejected the Department of Labor’s position that all third-party bonuses must necessarily be included in an employee’s regular rate of pay for purposes of computing overtime. For more, click here.

But-For Causation Standard Applies to ADA Discrimination Claims

The U.S. Court of Appeals for the Ninth Circuit overruled its own precedent in holding that the but-for causation standard, and not the motivating factor causation standard, applies to claims of discrimination under the Americans with Disabilities Act. For more, click here.

Employee Bound by Emailed Arbitration Agreement Despite Denial of Knowledge

Although the employee denied he ever saw the emailed mandatory arbitration agreement, the U.S. Court of Appeals for the Seventh Circuit found the agreement to be enforceable based on the employer’s notification actions.  For more, click here.

Employees Do Not Have the Right to Dictate the Reasonable Accommodation

The Americans with Disabilities Act and the Rehabilitation Act (applicable to federal sector workers) require employers to provide reasonable accommodations to enable disabled employees to perform their essential job functions or enjoy the privileges and benefits of employment, but as the U.S. Court of Appeals for the Seventh Circuit made clear, the employee is not able to dictate what that accommodation should be. For more, click here.

TOP TIP: EEOC’s Criminal Background Check Guidance Enjoined by Fifth Circuit – What Does This Mean for Employers?

The U.S. Court of Appeals for the Fifth Circuit found that the Equal Employment Opportunity Commission exceeded its authority when it issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII,” and the Fifth Circuit therefore prohibited enforcement of the Guidance against the State of Texas. The impact of this decision on other employers is less clear. For more,  click here.