May 2019 E-Update


Click here to view entire E-Update as a PDF


NLRB Finds Certain Gig Economy Workers To Be Independent Contractors

On the heels of the Department of Labor’s recent opinion letter, finding certain gig economy workers to be independent contractors under an “economic reality” analysis (as discussed in our April 2019 E-Update), the Office of General Counsel (OGC) of the National Labor Relations Board has now issued an Advice Memorandum finding UberX and UberBLACK drivers to be independent contractors as well.  For more, click here.

Rats! Rules! Even More NLRB Advice Memos

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. In addition to the memo discussed elsewhere in this E-Update, eight additional memos were issued in May, the earliest of which was prepared in February 2017, with the others coming in the last year or so. Notably, many of the principles articulated in the memos, particularly with regard to employer policies, apply to both non-union and union employers. For more, click here.

D.C. Circuit Emphasizes Need for Specific Evidence to Support Legitimate Nondiscriminatory Reasons

The U.S. Court of Appeals for the D.C. Circuit recently explained the burden on employers to provide sufficiently specific evidence to support their legitimate nondiscriminatory reasons for adverse employment actions in the context of a discrimination claim. For more, click here.

Collection of D.C. Universal Paid Leave Tax Begins

The District of Columbia passed the Universal Paid Leave Act of 2016, as we previously reported in our December 2016 E-Update, and the requirement for employer contributions to fund the leave benefits begins on July 1, 2019.  For more, click here.


New Maryland Minimum Wage Poster

As we discussed in our webinar on Maryland’s recently enacted employment laws, Maryland employers must post in the workplace the current version of the state minimum wage poster, and an updated version has just been released by the Maryland Department of Labor, Licensing and Regulation.  For more, click here.

Updated Poster for Government Contractors and Subcontractors

The Office of Federal Contract Compliance Programs has announced updates to the National Labor Relations Act rights poster that federal contractors and subcontractors are required to display under Executive Order 13496. For more, click here.

NYC Prohibits Discrimination Based on Sexual and Reproductive Health Decisions

Following recent bans on hair discrimination and pre-employment testing for marijuana, the New York City Council has now banned discrimination based on an employee’s “sexual and reproductive health decisions,” by adding it to the list of protected categories under NYC law.  For more, click here.

Employee’s Statements on SSDI Application May Preclude ADA Claim

An employee’s assertions of complete disability on her application for Social Security Disability benefits barred her claim under the Americans with Disabilities Act, according to the U.S. Court of Appeals for the First Circuit.  For more, click here.

Employees May Be Required to Arbitrate Section 1981 Race Discrimination Claims

Relying on Title VII precedent, the U.S. Court of Appeals for the Ninth Circuit found that race discrimination claims under Section 1981 can be subjected to mandatory arbitration.  For more, click here.

NLRB Finds Employer’s Changing Termination Reasons Demonstrate Pretext

In a case on remand from the U.S. Court of Appeals for the Third Circuit, the National Labor Relations Board found that an employer’s shifting explanations for an employee’s termination established pretext, and that the employee was actually terminated for engaging in concerted activity protected under the National Labor Relations Act. For more, click here.

Employer’s Misstatements May Not Be Unlawfully Coercive Under the NLRA

In Didlake, Inc., the National Labor Relations Board held that an employer’s statements to employees regarding their dues obligation are not coercive and do not constitute objectionable conduct even if they contain misstatements of the law, provided that the employer did not act in a “deceptive manner.” For more, click here.

Profanity and Aggressive Physical Conduct May Be Protected Activity

The National Labor Relations Board found that a union steward’s use of profanity and “aggressive physical conduct” in a location visible to employees and customers may be protected by the National Labor Relations Act.  For more, click here.

Granting A Day Off to Non-Union Employees Is Not Necessarily Anti-Union Animus

In Merck, Sharp & Dohme Corp., the National Labor Relations Board held that an employer was not motivated by unlawful anti-union animus when it prevented most of its unionized workforce from participating in its company-wide Appreciation Day, a paid day off before Labor Day weekend in 2015.  For more, click here.

TOP TIP: A Primer On Reporting EEO-1 Pay Data

As we previously reported, the Equal Employment Opportunity Commission will be collecting 2017 and 2018 pay data as required by its revised EEO-1 form. But what does that actually mean to employers?  For more, click here.