July 2018 E-Update


Click here to view entire E-Update as a PDFRECENT DEVELOPMENTS

Trump DOL Offers Guidance on Independent Contractor Status

Although specifically addressing the caregiver registry industry, the Department of Labor’s Field Assistance Bulletin “Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver” offers general insight into the Trump DOL’s approach to independent contractor status. For more, click here.

And More NLRB Advice Memoranda…Policies, Non-Disclosure Agreements and Outsourcing

A steady stream of Advice Memoranda continues to issue from the National Labor Relations Board’s Office of the General Counsel (OGC), following up on what we reported in our February 2018, March 2018, May 2018 and June 2018 E-Updates. Seven more memos were issued on July 13, 2018, although the dates that they were originally composed range from 2014 to last month. For more, click here.

Full-Time Presence at Work Is Not Necessarily an Essential Function of the Job?

In a somewhat unsettling decision, the U.S. Court of Appeals for the Sixth Circuit held that “full time presence at work is not an essential function of a job simply because an employer says that it is.” Interestingly, this seems to run counter to the Americans with Disabilities Act regulations, which state that evidence of whether a job function is essential includes, first, “The employer’s judgment as to which functions are essential.”  For more, click here.


Comments About Employee’s Accent Support National Origin Discrimination Claim

Maryland federal court found that a supervisor’s comments about an employee’s accent in the context of her unsuccessful application for promotion may be evidence of discrimination based on her national origin. For more, click here.

Valet Uniforms May Be “Materials” for Purposes of FLSA Enterprise Coverage

In a decision that broadens the reach of the Fair Labor Standards Act, the U.S. Court of Appeals for the Eleventh Circuit held that valet uniforms could be “materials” that trigger enterprise coverage for a car valet service. For more, click here.

Court Holds NLRB Must Tie Employee’s Discharge to Anti-Union Animus

The U.S. Court of Appeals for the Eighth Circuit held that the National Labor Relations Board misapplied the standard for determining when an employee’s discharge violates the National Labor Relations Act because of an employer’s anti-union animus. For more, click here.

OSHA Proposes to Rescind Electronic Reporting Requirements

The Occupational Safety and Health Administration has issued a Notice of Proposed Rulemaking to rescind the majority of controversial electronic reporting requirements. For more, click here.

NLRB Launches Pilot Program to Enhance Use of Alternative Dispute Resolution

The National Labor Relations Board announced a pilot program that increases the opportunities for parties to participate in its voluntary, no-cost Alternative Dispute Resolution (ADR) program. For more, click here.

OSHA Releases New Guidance on Temporary Workers

The Occupational Safety and Health Administration released two new temporary worker guidance documents that further emphasize the shared responsibility of staffing agencies and host employers for the temporary workers’ safety and health. For more, click here.


TOP TIP: Recent Developments on Weingarten Rights

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court upheld a National Labor Relations Board decision that an employee was entitled to union representation in an investigatory interview that could lead to discipline. Over the past four decades, other cases have expanded upon or interpreted the scope of these Weingarten rights, including two decisions this past month. For more, click here.