January 2019 E-Update


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Supreme Court Issues Arbitration Decisions

In January 2019, the United States Supreme Court issued two decisions construing arbitration agreements.  One case provides guidance for employers that wish to mandate arbitration as the sole means of resolving employment disputes.  The other concerns a statutory exclusion of certain workers’ claims from forced arbitration.  For more, click here.

NLRB Reinstates Prior Independent Contractor Standard

Continuing its trend of reversing course on positions slanted toward unions and employees asserted during the Obama Administration, the National Labor Relations Board has now returned to its prior, long-standing independent contractor standard. For more, click here.

Divided D.C. Circuit Upholds NLRB’s Obama-Era Joint Employer Standard (While the NLRB’s Notice of Proposed Rulemaking to Revise the Standard Remains Pending)

On December 28, 2018, the U.S. Court of Appeals for the D.C. Circuit, in a divided decision, upheld the NLRB’s joint employer standard in Browning-Ferris Indus. of California, Inc. v. National Labor Relations Board.  Although the court majority concluded that the Board had authority to adopt the new standard, it denied enforcement of the Board’s order and remanded the case because the Board failed to apply the standard properly and failed to explain adequately the basis for its decision finding joint employment.  For more, click here.

NLRB Holds that Use of the Word “We” In a Group Setting Does Not Make Individual Gripes Concerted Activity

In Alstate Maintenance, LLC, the National Labor Relations Board found that an employer did not violate Section 8(a)(1) of the National Labor Relations Act when it discharged an employee after he voiced individual gripes in a group setting, and included the word “we” in his complaint. In dismissing the complaint, the Board held that the employee’s conduct was neither concerted nor protected.  For more, click here.

A New Year, A New Batch of NLRB Advice Memos 

The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it did throughout 2018 and as we previously discussed in many of our monthly E-Updates. Five more memos were issued in January, several of which were originally prepared years earlier, with the others prepared last month. For more, click here.


OSHA Rescinds Electronic Illness and Injury Reporting Requirements

The Occupational Safety and Health Administration has issued a final rule that rescinds the requirement for employers to submit certain reporting. For more, click here.

DOL’s Annual Penalty Increase

The Department of Labor has announced its annual penalty increases. Due to the passage of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, federal agencies must issue regulations annually to adjust for inflation the maximum civil penalties that they can impose. For more, click here.

Seventh Circuit Reverses Course in Finding ADEA’s Disparate Impact Provision Does Not Cover Applicants.

On rehearing, the full U.S. Court of Appeals for the Seventh Circuit reversed a prior ruling by a three-judge panel of that court in Kelber v. CareFusion Corp. (which we discussed in our April 2018 E-Update) and has now held that the disparate impact protections of the Age Discrimination in Employment Act do not extend to applicants. For more, click here.

TOP TIP: Avoiding Jury Trials Through Written Agreements

As our lead story in this E-Update explained, by federal law, arbitration is given a favorable status.   It is a means to avoid having to defend legal challenges to employment decisions in jury trials (which favor individuals over companies, by-and-large).  Our Top Tip this month explains some essential elements of enforceable arbitration agreements (and offers, at the end of the piece, a lower-cost alternative to achieve the same goal). For more, click here.