July 2024 E-Update

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NLRB Rolls Back Trump Board Representation Case Policies  The National Labor Relations Board (the Board) issued a final rule on July 26, 2024, rolling back several Trump-era amendments to representation case rules. The rule, dubbed the “Fair Choice-Employee Voice Final Rule” makes three significant changes: (1) it restores the NLRB’s previous “blocking charge” policy; (2) it reinstates a six-month minimum voluntary recognition bar during which time a voluntarily recognized union’s status as majority representative cannot be challenged; and (3) returns to the Board’s pre-2020 approach to voluntary recognition in the construction industry.  For more, click here.

Dueling Federal Court Decisions on the FTC’s Non-Compete Ban – Now What?   As many employers know, the Federal Trade Commission has issued a final rule that imposes a near-total ban on non-compete provisions in employment agreements, applicable to for-profit employers (the FTC generally does not have jurisdiction over non-profit employers) with certain limited exceptions (as discussed in our April 24, 2024 E-lert). The rule was immediately challenged in several different courts and, in early July, a Texas federal judge issued a preliminary injunction that blocked the rule as to the plaintiffs in that case – the U.S. Chamber of Commerce, several other trade associations, and a private company, Ryan LLC – as discussed in our July 5, 2025 E-lert. The Texas judge indicated that she thought the FTC lacked the necessary authority to issue the rule and that the rule is likely arbitrary and capricious. But now, a Pennsylvania federal judge has come to the opposite conclusion.  For more, click here.

The 90-Day Filing Period for Discrimination Lawsuits Might Be Longer Than, Well, 90 Days…

In a cautionary tale for employers, the U.S. Court of Appeals for the Third Circuit recently held that neither the posting of the dismissal of an employee’s charge and notice of her right to sue in the Equal Employment Opportunity Commission’s electronic portal, nor the EEOC’s email to her attorney, was sufficient to trigger the start of the 90-day filing period for a Title VII lawsuit.  For more, click here.

 

OSHA Issues Onerous Proposed Rule to Prevent Heat Injury and Illness.  The Occupational Safety and Health Administration has issued a proposed rule intended to protect workers from heat-related illnesses and injuries. The rule imposes extensive requirements on employers. Among other things, the rule will require employers to develop an injury and illness plan to control workplace heat hazards, provide training, and implement procedures to respond to workers experiencing a heat-related illness or emergency.  For more, click here.

 Employee’s Unreasonable Objection to DEI Training Is Not Protected by Title VII.   The U.S.  Court of Appeals for the Seventh Circuit rejected an employee’s claim that he was unlawfully terminated in retaliation for his refusal to complete mandatory unconscious bias training – good news for employers’ diversity, equity and inclusion efforts.  For more, click here.

Employee May Be Fired for Refusing to Cooperate in Employer’s Investigation.  The employer had a legitimate reason to terminate an employee based on his refusal to cooperate in the investigation into his possible wrongdoing, according to the U.S. Court of Appeals for the Ninth Circuit. Moreover, the fact that his termination occurred 56 days after his internal discrimination complaints meant that there was not sufficient temporal proximity to support the claim of unlawful retaliation.  For more, click here.

NLRB General Counsel Doubles Down on Injunctive Relief.  Following last month’s Supreme Court decision holding that a stringent test applies to lawsuits filed by the National Labor Relations Board (the “Board”) that seek injunctions to halt serious labor violations (as discussed in our June 14, 2024 E-lert), the Board’s General Counsel has issued a memorandum that reaffirms her commitment to the use of injunctive relief.  For more, click here.

NLRB Abandons Its Joint Employer Rule – Now What?  On July 19, 2024, the National Labor Relations Board voluntarily dismissed its appeal of a federal court decision that vacated (i.e. blocked) its final rule for determining whether two entities are joint employers. (Under federal labor law, a joint employer is required to bargain with a union selected by its jointly-employed workers and may be held liable for the unfair labor practices committed by the other employer.) For more, click here.

A Reminder that Computer Boot-Up/Down Time May Be Compensable.  We previously discussed an opinion from the U.S. Court of Appeals for the Ninth Circuit, holding that time call-center employees spent booting up their computers is compensable work time, but sending the case back to the trial court to determine if the time was so minimal that it need not be paid. The trial court said yes, but now the Ninth Circuit has decided that is a question for a jury to consider.  For more, click here.

Some employers turn a blind eye to what happens outside the workplace – after all, that is the employee’s own time. And we cannot/should not control what employees do outside the workplace, right? Including personal social media activity, right? Unfortunately for those employers, that kind of thinking can land them in trouble, and a recent case from the U.S. Court of Appeals for the Ninth Circuit highlights that point.  For more, click here.