July 2019 E-Update


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More NLRB Advice Memos – Wage Increases and Information, and Beck Rights!

The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it has regularly done for the past year or so. Of particular interest are the following: For more, click here.

A Busy Month at the OFCCP – Update for Government Contractors

The Office of Federal Contract Compliance Programs had an active month, issuing an Opinion Letter, three Frequently Asked Questions (FAQs) documents, and a revised Functional Affirmative Action Plan directive. For more, click here.

Department of Labor Offers Guidance on Sleeping Time for Truck Drivers

The Department of Labor (DOL) has released a new opinion letter on sleeping time for truck drivers under the Fair Labor Standards Act (FLSA). Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters as general guidance. For more, click here.

NLRB Adopts New Framework for Anticipatory Withdrawal of Union Recognition

In Johnson Controls, Inc., the National Labor Relations Board overruled its own precedent and adopted a new framework for the case when an employer notifies the union representing its employees that it will withdraw recognition at the expiration of the parties’ collective-bargaining agreement (i.e., an “anticipatory” withdrawal of recognition). For more, click here.


DOL Issues New Compliance Tools

The Wage and Hour Division of the U.S. Department of Labor has announced the release of new tools intended to assist employers in complying with federal labor laws. For more, click here.

Refusal to Operate Machine Because of Safety Concerns Was Protected Concerted Activity

The U.S. Court of Appeals for the Eighth Circuit found that an employee’s refusal to follow an order to operate a machine based on safety fears that he and a coworker expressed earlier in the day was concerted activity regarding the terms and conditions of employment and thereby protected by the National Labor Relations Act. For more, click here.

Employer Does Not Forfeit Right to Terminate for Previously Unaddressed Performance Issues.

Although the employee had not been previously disciplined for various performance issues, the U.S. Court of Appeals for the Seventh Circuit found the employer did not forfeit its right to hold the employee accountable for the same type of conduct. For more, click here.

“Regular and reliable job attendance is a necessary element of most jobs.”

So says the U.S. Court of Appeals for the Eighth Circuit, in rejecting a locomotive engineer’s failure to accommodate claim under the Americans with Disabilities Act, while also finding that providing an accommodation in the past does not necessarily render the accommodation reasonable. For more, click here.

Employer Not Necessarily Liable for Insulting Facebook Posts

The U.S. Court of Appeals for the Third Circuit rejected a flight attendant’s hostile work environment claim based on offensive posts to a Facebook group that was neither created nor monitored by the employer. For more, click here.

“No Magic Number” of Insults Required to Support Hostile Environment Claim

A supervisor’s near-daily use of offensive comments about Puerto Ricans over a two-year period was sufficient to sustain the employee’s claim of a hostile work environment, even if the comments did not affect the employee’s work performance, according to the U.S. Court of Appeals for the Eleventh Circuit. For more, click here.

FMLA Does Not Insulate Employee From The Consequences of Poor Behavior

A recent case reminds employers that they can hold employees accountable for their misconduct, even under the Family and Medical Leave Act. For more, click here.

TOP TIP: Maryland Commissioner of Labor and Industry Provides Clarification of New Noncompete Law

As we reported in our April 10, 2019 E-lert on new Maryland employment laws, Maryland has enacted a Noncompete and Conflict of Interest Clauses (HB38/SB328) law covering low-wage workers. For more,  click here.