November 2019 E-Update

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The DOL Proposes a Reinterpretation of the Fluctuating Workweek Method for Computing Overtime

On November 5, 2019, the Department of Labor (DOL) published, for public comment, a proposed revision to its interpretation of the fluctuating workweek (FWW) method of computing overtime. Under the revised interpretation, bonuses, commissions, shift differentials and other additional payments will not prevent an employer from using that method.  For more, click here.

A Contractual Non-Disparagement Provision May Violate the National Labor Relations Act

Among the latest batch of Advice Memoranda from the National Labor Relations Board, the Office of General Counsel (OGC), weighs in on the issue of whether provisions prohibiting employee disparagement of the employer violate the National Labor Relations Act. Employers, both unionized and non-union, can look to Advice Memoranda, which contain the recommendations of the OGC to the Board on specific issues, for guidance.  For more, click here.

Government Contractor Update – November Was a Busy Month!

This month, there were a number of actions of more or less interest for government contractors.  For more, click here.

An Employer Is Not Required to Continue an Unreasonable Accommodation.

According to the U.S. Court of Appeals for the Eleventh Circuit, “just because an employer has, in the past, done more than required to accommodate an employee who cannot fulfill all the requirements of his job does not mean that the employer must continue to do so.”  For more, click here.

NLRB Holds That Employee Activity on Behalf of Non-Employees is Unprotected.

In Amnesty International, Inc., the National Labor Relations Board held that the employee activity in support of unpaid interns did not amount to protected concerted activity, because the activity was not protected. Specifically, employee support for nonemployees is not “for the mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act.  For more, click here.

The ADA Does Not Protect Future Impairments.

The Americans with Disabilities Act “plainly encompasses only current impairments, not future ones,” according to the U.S. Court of Appeals for the Seventh Circuit.  For more, click here.

Mandatory Arbitration Policy Created in Response to Collective Action is Lawful, Says NLRB.

The National Labor Relations Board held that an employer’s promulgation of a mandatory arbitration provision in response to employee protected concerted activity does not violate the National Labor Relations Act (NLRA).  For more, click here.

Different Discipline for Hitting on Arrestees Was Not Based on Race.

In a case about which we previously and irreverently blogged, the U.S. Court of Appeals for the Sixth Circuit has now affirmed that a black trooper appropriately received harsher discipline than a white trooper for hitting on arrestees.  For more, click here.

A Medical Expert Is Not Necessarily Required To Prove Disability at Trial.

According to the U.S. Court of Appeals for the Tenth Circuit, a medical expert is not always required to establish a plaintiff’s disability for purposes of a lawsuit under the Americans with Disabilities Act.  For more, click here.

The ADA Encompasses Hostile Work Environment Claims.

The U.S. Court of Appeals for the Seventh Circuit held that a plaintiff may assert a hostile work environment claim under the Americans with Disabilities Act, in addition to the more typical claims of discrimination and failure to accommodate.  For more, click here.

With the onset of winter, many employers anticipate some snow-related closures. A business may decide to remain closed for the whole day, or perhaps shut down early. How does this impact an employee’s pay?  For more,  click here.