February 2018 E-Update


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Supreme Court Update

The Supreme Court issued several employment-related decisions this month: (1) it narrowly defined “whistleblowers” who are entitled to protection under the Dodd-Frank Act; (2) it reiterated that retirees’ right to “lifetime” health benefits expires at the end of a collective bargaining agreement, unless the CBA specifically provides otherwise; and (3) it declined to clarify if sexual orientation discrimination is prohibited by Title VII.  For more, click here.

NLRB Releases Multitude of Advice Memos

The National Labor Relations Board’s Office of the General Counsel (OGC) released 44 advice memos during a five-day period, from February 11-16, 2018. Some of these memos were originally issued as far back as 2009, but they were not released to the public until this month. The positions asserted in some of the memos were subsequently addressed in Board opinions, while others are very specific to the individual situation. There are a number of them, however, that offer some insight into matters of general interest. It is worth noting that the vast majority of these memos were issued during the pro-union Obama administration, and that the current General Counsel has already expressed interest in revisiting some of these issues. For more, click here.


En Banc Second Circuit Rules Sexual Orientation Discrimination Violates Title VII.

As noted in our Supreme Court update this month, the U.S. Court of Appeals for the Second Circuit, sitting en banc, recently held that sexual orientation discrimination is covered by Title VII. For more, click here.

NLRB’s Updated Joint Employer Standard Rescinded – For the Moment. 

In a decision published February 26, 2018, the National Labor Relations Board vacated a Trump-era decision (Hy-Brand Industrial) concerning joint employer liability. For more, click here.

NLRB Solicits Input on Misclassification Issue.

The National Labor Relations Board has invited the public to submit briefs on the issue of whether the act of misclassifying an employee as an independent contractor is a violation of the National Labor Relations Act. For more, click here.

Employer May Not Use Commercial Cost of Housing for FLSA Purposes.  

A bed and breakfast that sought to take a credit for housing against an employee’s wages under the Fair Labor Standards Act may not use the cost it charged guests as the value of the housing. For more, click here.

Company Became Successor Employer on Date It Assumed Predecessor’s Operations. 

In Ride Right, LLC, the National Labor Relations Board deemed the company to be a successor employer for purposes of the National Labor Relations Act on the date that it assumed the predecessor employer’s operations, and the successor was therefore obligated to recognize and bargain with the union representing the predecessor’s employees at that point. For more, click here.

Manager’s Explanation of Employee’s Inclusion in RIF Was “Plus Factor” That Undercut Age Claim. 

The U.S. Court of Appeals for the Eleventh Circuit found that a manager’s explanation as to why an employee was included in a company reduction in force was a “plus factor” that supported the company’s decision to terminate the employee. For more, click here.

Period of Telework Was Reasonable Accommodation. 

A jury’s verdict that an attorney had been denied reasonable accommodation under the ADA when the company refused to allow her to telework for a 10-week period of bedrest was upheld by the U.S. Court of Appeals for the Eleventh Circuit, despite the company’s argument that in-person attendance was an essential function of the job. For more, click here.

TOP TIP: Maryland DLLR Issues FAQs on Earned Sick and Safe Leave Law

On February 16, 2018, the Maryland Department of Licensing and Labor Regulation (DLLR) released Frequently Asked Questions (FAQs) on the Maryland Healthy Working Families Act, which requires employers to provide earned sick and safe leave to eligible Maryland employees. The following are points of particular interest from the 10-page document, available on the DLLR’s paid leave webpage: For more, click here.