September 2019 E-Update


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U.S. Supreme Court’s Upcoming Employment Docket

The first Monday in October begins a new Supreme Court term each year.  For those that follow labor and employment cases, the first Tuesday in October (specifically, October 8, 2019) will be the real “opening day” as the Court has devoted its docket to three cases that will require the Court to decide whether Title VII’s prohibition on sex discrimination extends to sexual orientation and/or gender identity. For more, click here.

Employer May Not Delay FMLA Designation Pursuant to Collective Bargaining Agreement

The Department of Labor (DOL) has released a new opinion letter under the Family and Medical Leave Act (FMLA), in which it states that an employer may not delay the designation of FMLA leave even where a collective bargaining agreement (CBA) provides for such delay. For more, click here.

NLRB Continues Expansion of Employer Private Property Rights

In Kroger Limited Partnership, the National Labor Relations Board issued its third major decision concerning employer private property rights. The Board established a new standard concerning when an employee may ban or prohibit access to its property by a nonemployee union agent to engage in protest or other organizational activity. For more, click here.

NLRB Grounds Proposed Micro-Unit at Boeing Plant

In Boeing Co., the National Labor Relations Board found a petitioned-for “micro unit” inappropriate, and clarified that its 2016 PCC Structurals decision contemplates a three-step process for determining whether a proposed bargaining unit is appropriate under the Board’s community-of-interest test. For more, click here.

Another Month, Another (Unhelpful) NLRB Advice Memo on Social Media Rules

In the latest batch of Advice Memoranda from the National Labor Relations Board, the Office of General Counsel (OGC) offers further guidance to employers, both unionized and non-union. Advice Memoranda contain the recommendations of the OGC to the Board on specific issues. While several are years old and of limited interest, Comprehensive Healthcare Management Services, LLC, which was prepared in 2018, provides some rather confusing direction on social media rules. For more, click here.

Federal Contractor Update – Minimum Wage Increase, Contractor Portal, Guidance for Educational Institutions

This past month, the Office of Federal Contract Compliance Programs continued with its flurry of activity. Among the actions it has taken are the announcement of the new minimum wage rate for certain covered workers, a new feature on its recently-created Contractor Assistance Portal, and guidance for educational institutions and other contractors with campus-like settings. For more, click here.


DOL Proposes Revisions to the FMLA Forms

The Department of Labor has proposed revisions to its model forms under the Family and Medical Leave Act, with the stated purpose of increasing compliance, improving customer service, and making the forms easier to use. According to the DOL, the revisions include the following: For more, click here.

NLRB Poised to Exclude Student Workers from Employee Status

The National Labor Relations Board has issued a proposed rule that would exclude from coverage under the National Labor Relations Act college and university students performing services for compensation in connection with their studies. For more, click here.

NLRB Adopts New Unilateral Change Standard

In MV Transportation, the Board adopted the “contract coverage” analysis when determining whether a unionized employer’s unilateral change to employee working conditions violates the National Labor Relations Action (NLRA). In doing so, the Board overturned the “clear and unmistakable waiver” standard that had been rejected by several courts of appeals, particularly the D.C. Circuit, which has plenary jurisdiction to review all Board decisions. For more, click here.

The ADA Does Not Cover Potential Future Disabilities

In a case of first impression, the U.S. Court of Appeals for the Eleventh Circuit rejected the Equal Employment Opportunity Commission’s argument that an employer regarded an employee as disabled when it terminated her employment based on its fear that she would contract Ebola during an upcoming trip to Africa. For more, click here.

Employer Reasonably Believed that Golfing Employee Abused FMLA Leave

The U.S. Court of Appeals for the Sixth Circuit upheld the termination of an employee with a shoulder condition, finding that the employer’s belief that he was abusing his leave under the Family and Medical Leave Act was reasonable, given that he took such leave next to PTO days or weekends and golfed during such leave.  For more, click here.

Remember that the ADA Protects an Association with a Disabled Individual

A recent case is a good reminder that the Americans with Disabilities Act prohibits discrimination against non-disabled employees based on their association with a disabled individual. For more, click here.

Maryland Employers Must Consider Noncompetitive Reassignment as Reasonable Accommodation

Courts across the U.S. are split on whether an employer must grant a reassignment on a noncompetitive basis or must simply allow a disabled employee to compete for such reassignment as a reasonable accommodation. The Equal Employment Opportunity Commission and the Maryland Court of Appeals – and now the Maryland federal district court – have adopted the position that employees must be given the transfer, even if they are not the most qualified for the job, as long as they meet the basic qualifications. For more, click here.

Updated Workplace Accommodation Toolkit from the Job Accommodation Network

The Job Accommodation Network (JAN), which is an entity funded by the U.S. Department of Labor’s Office of Disability Employment Policy, has updated its Workplace Accommodation Toolkit. For more, click here.

TOP TIP: Be Careful What You Put In Writing

A recent case provides a reminder to managers to be thoughtful about what they write in an email or text message. With the prevalence of email and text messages, many people tend to think of those means of communication as a casual equivalent to a conversation. This type of thinking, however, can come back to haunt the writer. For more,  click here.