August 2023 E-Update


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NLRB Decisions Restrict Unionized Employers’ Ability to Act Unilaterally

In two companion decisions issued on August 30, 2023, the National Labor Relations Board (the Board) severely eroded unionized employers’ ability to unilaterally act in accordance with their past practice. The Board concluded in these cases that an employer will violate Section 8(a)(5) of the National Labor Relations Act (which requires the employer to bargain collectively with the union) if, during bargaining, its actions (1) involve a “large degree” of discretion, or (2) were premised on a right to act unilaterally provided for by a since-expired management-rights clause in a collective-bargaining agreement (CBA). The decisions overruled the Board’s 2017 holding in Raytheon Network Centric Systems, which afforded employers the ability to make unilateral changes impacting its unionized workforce during negotiations for a first CBA or during a contractual hiatus when no agreement is in effect. For more, click here.

Immediate Action for Employers After NLRB’s Cemex Decision on Union Organizing

The NLRB’s August 25, 2023 Cemex decision drastically changed the rules concerning union organizing, as we discussed in detail in our August 28, 2023 E-lert.  Under the new rules, if an employer does not file an “RM” petition with the NLRB within two weeks of receiving a demand for recognition from a union, the NLRB can order the employer to recognize and bargain with the union as representative of its employees.  If you do not know what demand for recognition is, or how to file an “RM” petition with the NLRB, you’re not alone. For more, click here.

“Ultimate” Employment Actions May Not Be Necessary to Establish Title VII Liability

In order to establish a discrimination claim under Title VII, an employee must show, among other things, that they suffered some “adverse employment action.” Traditionally, courts have interpreted that to mean some “ultimate employment decision” (typically involving a direct economic impact, such as a lack of promotion or a termination). But a recent ruling from the U.S. Court of Appeals for the Fifth Circuit, as well as other sister Circuits, has broadened the definition of what constitutes an actionable adverse employment decision. For more, click here.

Warning – Cooperation Between Federal Agencies Means More Liability for Employers!

In our January 2022 E-Update, we discussed a memorandum of understanding (MOU) between the National Labor Relations Board and the U.S. Department of Labor to facilitate information sharing, referrals, joint investigations, and enforcement, and predicted that employers would face more aggressive agency activity. And that is the case, as evidenced by a recent NLRB press release. For more, click here.

Minor Impairments ≠ Disabilities, and Minor Annoyances ≠ Retaliation.

These were the points recently made by the U.S. Court of Appeals for the Fourth Circuit in finding that an employee was not disabled within the meaning of the Americans with Disabilities Act and that he did not experience retaliation for requesting an accommodation. For more, click here.



The NLRB Affirms Its Test for When Adverse Action Is Motivated by Protected Conduct. In Intertape Polymer Corp., the National Labor Relations Board (the Board) reaffirmed the standard it will apply when determining whether an adverse employment action was motivated by employee conduct protected by the National Labor Relations Act (NLRA). For more, click here.

No FMLA Violation for Requiring Employees to Catch Up on Their Assigned Work. An employee can be required to catch up on work that they did not perform while on FMLA leave, according to the U.S. Court of Appeals for the Third Circuit. But employers should not impose such expectations unreasonably. For more, click here.

Be Careful – A Time Clock Rounding Policy Can Result in FLSA Liability! Although the Fair Labor Standards Act regulations permit employers to round off employees’ start and stop times for administrative ease, this process may still result in liability for employers, as the U.S. Court of Appeals for the Eighth Circuit recently held. For more, click here.

What Is a Staffing Company’s Liability for Harassment of Their Employees by the Client? A recent case from the U.S. Court of Appeals for the Fifth Circuit provided some guidance on this question – and the answer turns on what the staffing company knew or should have known. (By the way, a client company can be liable for such harassment as a joint employer of the staffing company workers if it exercises sufficient control over their employment). For more, click here.

OFCCP Audits Will Now Be More Burdensome for Federal Supply and Service Contractors.  The Office of Federal Contract Compliance Programs has released a new version of its Scheduling Letter and Itemized Listing, which sets forth the information and documents that federal supply and service contractors will be required to provide if they are selected for a compliance audit. For more, click here.

The DOL Issues Final Rule “to Modernize the Davis Bacon Act.”  Under the Davis-Bacon Act, construction companies are required to pay a federally-set prevailing wage and benefit rate to employees performing work on federal contracts or subcontracts. The U.S. Department of Labor, which enforces the Act, has issued a final rule that drastically revises contractor obligations. For more, click here.

The EEOC’s Strategic Plan Provides Insight Into Its Priorities, Including Systemic Discrimination. The Equal Employment Opportunity Commission has released its Strategic Plan for Fiscal Years 2022-2026, effective immediately. This document provides employers with an overview of the EEOC’s particular areas of focus. For more, click here.


TOP TIP: What to Expect from Maryland’s Paid Family and Medical Leave Program

Maryland has enacted a paid family and medical leave insurance program that, starting in 2026, will provide most Maryland employees with 12 weeks of paid family and medical leave, with the possibility of an additional 12 weeks of paid parental leave, as we have previously detailed in our E-lerts from April 12, 2023 and April 12, 2022. The Maryland Department of Labor (MDOL) was directed to issue regulations to interpret and implement the Act by January 1, 2024. The MDOL has begun the regulatory process, and its actions provide some insight into what the MDOL might be thinking on a variety of topics of specific interest to employers. For more, click here.