December 2019 E-Update


Click here to view entire E-Update as a PDF


EEOC Rescinds Policy Statement Objecting to Mandatory Arbitration Agreements.

The EEOC has announced the rescission of a 1997 policy statement in which it objected to the use of agreements that required employees to resolve employment disputes solely through arbitration.  For more, click here.

NLRB Returns to Standard That Dues Checkoff Provision Expires With CBA.

In Valley Hospital Medical Center, the National Labor Relations Board returned to the longstanding precedent that dues-checkoff provisions – a contractual requirement that employers automatically deduct union dues from employee paychecks, and remit the dues to the union – are enforceable only for the duration of the applicable collective-bargaining agreement (CBA) reached by the parties. Thus, an employer’s refusal to continue dues checkoff following expiration of a CBA does not violate the National Labor Relations Act. For more, click here.

NLRB Reinstates Arbitral Deferral Standard.

In another about-face from positions taken by the National Labor Relations Board under the Obama administration, the Board announced the reinstatement of its longstanding arbitral deferral standard, which it uses to decide when to defer to an arbitrator’s grievance decision as to whether an employee’s discipline or discharge violates the National Labor Relations Act. For more, click here.

Federal Regulations May Provide Guidance as to Maryland’s Wage-Hour Law.

The Maryland Court of Special Appeals held that, where provisions under the federal Fair Labor Standards Act and Maryland’s Wage-Hour Law are substantially similar, the federal regulations interpreting that FLSA provision are “persuasive authority as to the correct interpretation of Maryland law.” For more, click here.


Court Approval Is Not Required To Settle FLSA Claims Through Offers of Judgment. The U.S. Court of Appeals for the Second Circuit concluded that the Fair Labor Standards Act does not require judicial approval for settlement through a Rule 68(a) offer of judgment. For more, click here.

NLRB Allows Limitation on Wearing of Union Insignia on Selling Floor. In Wal-Mart Stores, Inc., the National Labor Relations Board addressed whether a dress code policy that limits, but does not prohibit, the wearing of union insignia violates the National Labor Relations Act. For more, click here.

Different Standards Apply to Equal Pay Act and Title VII Pay Discrimination Claims. The U.S. Court of Appeals for the Second Circuit held that a plaintiff does not need to establish a violation of the Equal Pay Act in order to maintain a pay discrimination claim under Title VII. For more, click here.

NLRB Orders Approval of McDonald’s Settlements, Avoids Joint Employer Designation. The National Labor Relations Board has ordered the approval of settlements of complaints that the Board’s General Counsel issued in 2014 under the Obama administration in which the GC had sought to hold McDonald’s liable, under a joint employer theory, for various unfair labor practices against the franchisees’ employees in connection with the Fight for $15. In so doing, the Trump Board retreated from the Obama Board GC’s assertion of joint employer status. For more, click here.

Limiting Backpay to Arbitration Proceedings is Unlawful, According to NLRB. In Kelly Services, the National Labor Relations Board concluded that an arbitration agreement provision prohibiting employees from receiving backpay or other monetary compensation through NLRB proceedings is unlawful. For more, click here.

No Retaliation Where Documentation Supports Job Elimination and Termination for Performance. In a case that reiterates the importance of documentation, an employer avoided liability for an employee’s retaliation claim under the False Claims Act where it was able to demonstrate the legitimacy of its decision to eliminate her position and that she had performance issues that pre-dated her whistleblower complaint. For more, click here.

Employer’s Good Faith Belief as to Employee’s Misconduct Sufficient to Support Termination. In a case that offers good news to employers, the U.S. Court of Appeals for the Eighth Circuit held that an employer’s good faith belief that the employee had engaged in workplace misconduct supported its termination decision, despite its inability to prove such misconduct. For more, click here.

TOP TIP: New Year, New Minimum Wage Rates in the Mid-Atlantic.

Although the federal minimum wage remains $7.25, Maryland’s minimum wage is subject to an annual increase, with the next increase coming on January 1, 2020 – from $10.10 to $11.00 per hour. For more, click here.