June 2020 E-Update


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DOL Offers COVID-19 Guidance on Enforcement Action Damages, Summer Jobs for Teens, and Summer Camp Closures

The Department of Labor issued several field bulletins this month on issues related to COVID-19 and school children, as well as damages in enforcement actions. Field bulletins provide guidance to DOL staff and employers in response to questions that have arisen in field operations. For more, click here.

Developments in the NLRB’s Revised Representation Election Rule – Where Is It Now?

On June 1, 2020, the National Labor Relations Board implemented many of its proposed changes to the rule governing representation elections, in which employees vote on whether they wish to be represented by a union.  For more, click here.

Employers Have No Duty to Bargain Over Discipline with Union Prior to First CBA

The National Labor Relations Board (NLRB) reversed a 2016 decision that required employers to bargain with a newly-certified union prior to imposing “serious discipline” before the employer and union reached an initial collective-bargaining agreement (CBA).  For more, click here.

DOL Released New FLSA Opinion Letters on Targeted Topics

This past month, the U.S. Department of Labor released several new opinion letters of rather targeted interest. Opinion letters respond to a 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 for guidance.  For more, click here.

Maryland Appellate Court Finds Non-Renewal of Employment Agreement to Constitute Wrongful Termination

In Miller-Phoenix v. Baltimore City Board of School Commissioners, the Maryland Court of Special Appeals held for the first time that an employee may bring a claim for wrongful termination (also known as “wrongful discharge” or “abusive discharge”) when an employer decides to terminate an employment agreement for a specific period where the parties anticipated the reasonable possibility of renewal.   For more, click here.


Minimum Wage Increase – D.C. and Montgomery County. Although the federal minimum wage rate remains the same at $7.25, several local jurisdictions in the mid-Atlantic region will see an increase in the minimum wage rate on July 1, 2020.   For more, click here.

“Transfer” Following Job Elimination Triggered Non-Compete Countdown. A recent case warns employers that there may be non-compete implications when employees are transferred to a new job after a position elimination – an issue of particular relevance in the current economic climate.   For more, click here.

Second Circuit Upholds Fluctuating Workweek Method of Calculating Overtime.   The U.S. Court of Appeals for the Second Circuit addressed for the first time the use of the fluctuating workweek (FWW) method, upholding the employer’s calculation of overtime pursuant to that approach.  For more, click here.

Weingarten Rights Not Triggered By Reciting Facts About Attempts to Communicate with Union.  In a case that exemplifies the importance of word selection, the U.S. Court of Appeals for the D.C. Circuit found that an employee did not invoke his right to union representation at a disciplinary meeting by reciting facts about his past communication with the union, absent a clear assertion of his desire for such representation.  For more, click here.

No Sex Discrimination Because Employer May Determine Required Qualifications.  In rejecting a female plumber’s sex discrimination claim arising from her non-selection for several positions, the U.S. Court of Appeals for the 6th Circuit reiterated that the employer may decide who is best qualified to fill the positions in question. For more, click here.

NLRB Permits Employers to Search Company Devices and Employee Property, Including Cars.   In Verizon Wireless, the National Labor Relations Board held that employer rules authorizing the monitoring of company electronic devices and searches of employee property, including cars, were lawful.  For more, click here.

Employee Must Be Actually Offended In Order to Sustain Harassment Claim.  A recent case reiterates the obvious but important principle that, in order to sustain a harassment claim, the complaining employee must show that they were, in fact, offended by the alleged harassment. For more, click here.

NLRB Retreats From Overly Restrictive Definition of “Solicitation.”  The National Labor Relations Board overruled its own precedent in finding that an employee who encourages another employee to vote for a union has engaged in solicitation that may lawfully be prohibited during their working time.  For more, click here.

Under ADA, Whether Impairment is “Minor” is Separate Inquiry from “Transitory.”    The U.S. Court of Appeals for the 3rd Circuit stated that the exemption of “transitory and minor” impairments from the protections of the Americans with Disabilities Act requires an employer to establish that the impairment in question is both transitory and minor.  For more, click here.


TOP TIP: Masks/Face Coverings in the Workplace Uncovered!  What Can Employers Require?

As offices and other workplaces reopen, employers are struggling with the issue of masks and face coverings in the workplace. There has been much confusion about whether and when cloth face coverings are required, and what are an employer’s obligations with regard to their use. For more, click here.