Lincolnshire IL Anti-Union Ordinance Tossed By 7th CIRCUIT

September 28, 2018 - Can the political subdivision of a State, following the lead of State level right-to-work legislation, restrict unionism through an ordinance?  The Village of Lincolnshire passed ordinances forbidding compulsory union membership and union dues checkoffs.  A number of unions sued the Village, claiming that the ordinances were preempted by federal law.  The Village argued that Section 14 of the NLRA, that ceded power back to the States to ban union shops, could delegate this p




6/8/18

How are OSHA inspectors using Table 1

Up until the first half of this year OSHA's standard regulating respirable crystalline silica applied only to the construction industry.  But  on June 23 the scope of OSHA's standard expands to industry in general and maritime workplaces.  The rules out of OSHA are the product of intensive consideration and represent one of the largest initiatives in workplace safety ever published. The agency's investment in investigating the need to protect workers from RCS, and to structure a standard to assure employers do all they reasonably can to assure this protection, signify new costs of doing business....and fines if the employer's efforts fall short.  

 

Who’s covered: 

The standard (29 CFR 1910.1053) applies to general industry and maritime, particularly workers in these industries:

1. Manufacture of glass, pottery, ceramic, brick, concrete, asphalt roofing, jewelry, artificial stone, dental, porcelain, or structural clay products;

2. Use of industrial sand in operations such as foundry work and hydraulic fracturing;

3. Use of sand for abrasive blasting, such as in maritime operations.


What is required of employers:

1. Exposure determination: Are workers exposed to RSC at or above the “action level” of 25 micrograms of silica per cubic meter of air, averaged over an eight-hour day?  The failure to conduct an exposure assessment is the most common form of citation under the silica standard.

2. Protection of workers from exposure to respirable crystalline silica where the exposures are above the what OSHA calls the "permissible exposure limit" (PEL): 50 micrograms per cubic meter of air, averaged over an eight hour day.  This includes limiting access to areas where workers could be exposed above the PEL.  Protections also include respirators, dust controls, and safer work methods.

3. Written exposure control plan

If the enforcement history for the construction industry standard is any guide (OSHA began policing this standard last October), the failure of an employer to compose and disseminate an exposure control plan risks a fine from OSHA.

29 CFR Sec 1926.1153 (g)(1).

5/17/18

Wage Claim Act Protects Workers whose Duties Performed Outside of Illinois

 In Watts et al v Addo Management LLC et al, 2018 IL App (1st) 170201, the issue was whether employees were entitled to final wages for work that, in the vast majority, was performed outside the State of Illinois.  This court responded yes.


Cook County Circuit Judge Spratt granted a motion to dismiss,  agreeing with the Niles-based trucking company employer.  Plaintiffs were to be paid by cents/mile, and in 2015 made three round trips to Portland, for which they received no compensation.  The trial judge found that since the miles driven in Illinois one-way were 168 out of the total 2,110 miles to Portland, this represented an insufficient amount of work to bring the claim within the jurisdiction of the Illinois Wage Payment and Collection Act.


On appeal the First District Appellate Court began by quoting the Act, which "applies to all employers and employees in this State..."   There is no provision in the Act that requires a minimum of hours that must be worked in the State of Illinois for a claimant to be covered.  The court turned to the Illinois Department of Labor regulations in the  Administrative Code, which underwent significant expansion in 2014.  56 Ill. Adm. Code 300.440, amended eff. August 22, 2014.


The regulations state in part that "(d) If the work is performed outside the State of Illinois, the employer must be located in Illinois in order for the Department [of Labor] to assert jurisdiction over the claim."


Contrary to this regulation, however, is part of the Q and A in the Frequently Asked Questions section of the Illinois Department of Labor website, in answer to the question "Who is Covered by the [Act]?"   The answer, in part, is "The work has to be performed in Illinois for an employee to make a claim under the Act.  For example, a truck driver that lives in Illinois but travels throughout the United States to perform their work is likely not covered by the Act."   https://www.illinois.gov/idol/FAQs/Pages.   


The court ruled that this is a single passage from the website's FAQ that provides "only a cursory explanation of the applicability of the Act to lay persons.  Any apparent conflict between a website FAQ and the Administrative Code is resolved in favor of the latter.


NOTE THAT A CLAIM FOR UNEMPLOYMENT BENEFITS MUST BE FILED IN THE STATE WHERE THE CLAIMANT WORKED; FOR WORK THAT WAS INTERSTATE, THE CLAIMANT'S "HOME BASE" IS THE STATE FOR CLAIM FILING.

5/15/18

Following Microsoft, Uber and Lyft on the Same Day Drop Mandatory Arb for Sexual Harassment Cases

 

Last December Microsoft showed some enlightenment and announced that employees are no longer required to take a claim of sexual harassment to binding arbitration, and could instead sue in court.  This week Uber and (hours later) Lyft announced the same thing.  Employees now have the option to sue or file a demand for arbitration.


Questions:

Why is it that complaints for other forms of harassment, e.g., hostile environments based on age or race, are overlooked in this progressive trend?  This is reminiscent of the Illinois legislature's weird amendment to the Human Rights Act that expanded the scope of jurisdiction over employers as to sexual harassment and disability charges, but only as to them.  


Is it discriminatory for an employer to require arbitration as the exclusive dispute resolution procedure for race, age, religion, or retaliation, but not to impose this procedure on sexual harassment claims?

Will other prominent corporations follow suit and relax the exclusivity requirement?  Apple?  Google?  Exxon Mobil?

5/9/18

State legislatures Consider Independent Contractor Pigeonholes for Gig Economy Workers

Lawmakers in at least eight states are currently deliberating over bills that have one purpose: to codify the characterization of many workers in the gig economy as independent contractors. The prime mover of these bills is Handy, sort of an Uber that provides handymen services rather than rides.  The definition below of a "workplace contractor" in a bill pending in Tennessee's legislature is typical.  It uses the term "marketplace platform" as a term of art, and that is a bit confusing since there are numerous terms abroad in the land that apply to the same thing ("sharing economy", "collaborative consumption", "Sap platform", "Saap platform", "Saap marketplace", for example).


A "marketplace contractor" is one who:


(A) Enters into an agreement with a marketplace platform to use the platform’s online-enabled application, software, website, or system to be given an assignment, or otherwise receive connections, to third-party individuals or entities seeking its services in this state; and 


(B) In return for compensation from the third-party or marketplace platform, offers or provides services to third-party individuals or entities upon being given an assignment or connection through the marketplace platform’s online-enabled application, software, website, or system.


What is meant by one who "otherwise receive[s] connections"?  The use of "marketplace platform" is as good as any but if this type of legislation becomes law there will be fights over terms and how they apply.  What if the "platform" punishes drivers or handymen for refusing assignments? Or pays compensation on the basis of hours worked? And what if the worker's sole income is this gig?


Similar bills are pending in these states' general assemblies (in addition to Tennessee):  Iowa, Indiana, Kentucky, Florida, Colorado, Utah, and Georgia.


5/8/18

Trump's Impact on Labor and Employment Law: Legislation (Part 1)

  

So far this aspect of the Administration’s activity is noteworthy more by what has not yet happened rather than what has taken place. Although the ACA repeal and the tax bill preoccupied lawmakers in this first year plus, the relatively spotty year for legislation also can be attributable to the President’s focus on subtracting from, rather than adding to, laws and regulations.


The 1.3 trillion dollar, 2,250 page Omnibus Budget Bill contained an amendment to the Fair Labor Standards Act (at page 2,025) codifying the law on the allocation of tips. No tips received by wait staff and other front of the house personnel may be retained by management. However, proprietors may allocate tips to back of the house workers (cooks, dishwashers, etc.) who customarily never receive them.


Tax Credit for paid FML. As part of the equally extensive Tax Cuts and Jobs Act, the Internal Revenue Code has been amended to provide for a paid family and medical leave credit.  This credit is in effect only for 2018 and 2019, unless extended by Congress. Employers who maintain a written paid leave plan providing at least two weeks of such leave can take a credit on a sliding scale from 15% to 25% of family and medical leave monies paid by the employer to the eligible workers who use the plan. The plan must permit at least 50% of normal pay for such leave, which mirrors the FMLA for the reasons for taking the time off, e.g., a serious health condition. Existing paid leave plans (PTO, vacation, sick leave) don’t qualify. The plan must be distinct from such related benefits. Employees who make over $77,000 a year cannot participate.


The Act also denies a deduction for employers for the cost of the settlement of a sexual harassment complaint if the settlement is accompanied by a non-disclosure agreement.  Note that this provision of the new tax law denies a deduction for legal fees, but due to a drafting error did not limit this denial to attorneys fees incurred by the employer.


ADA Tweaking The House of Representatives on February 16, 2018 passed H.R. 620, the “ADA Education and Reform Act of 2017.” It would outlaw “drive-by” ADA access suits brought under Title III, often in serial fashion by the same plaintiff (and the same attorney). Under this bill, A Senate version of which is pending, a putative ADA plaintiff would be required to afford the putative defendant a “notice and cure” period of 60 days, and another 120 days before suit could be commenced.

5/8/18

Trump's Impact on Labor and Employment Law: Justice Gorsuch (Part 2)

  

  

Justice Gorsuch joined the Court a year ago. As a Justice he has yet to author an opinion involving labor and employment law. He is an active listener and questioner. Gorsuch has set a tone during arguments of peppering attorneys with questions. During the February 2018 arguments before the Court in Janus v AFSMCE, the public-sector union case, he was atypically taciturn. For a new kid on the block, he’s also showing presumptuousness. In his dissent in Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017), a federal employee case, he lectured (frequently with sarcasm) Justice Ginsburg and the majority about the fundamentals of American government and the appropriate way that members of the Court should decide cases.  Linda Greenhouse wrote this in an op-ed for the New York Times: “He [Justice Gorsuch] is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about.”   


At the Tenth Circuit Gorsuch was the lone dissenter in an employment case involving truckdriver Alphonse Maddin, who was hauling cargo one night in -14° weather. When his trailer’s brakes failed he called his employer for a rescue truck. After several hours in his unheated cab waiting, Maddin drove off in the cab, leaving the trailer. He was fired for abandoning the cargo. He complained to the U.S. D.O.L., which has a regulation forbidding termination of an employee who refuses to operate a vehicle “because…the employee has a reasonable apprehension of serious injury to the employee or the public.” Gorsuch declared Maddin wasn’t fired for refusing to operate an unsafe “vehicle.” He was fired for driving off. The majority held that the tractor-trailer was the “vehicle.” 


Last month he joined the liberals on the Court in striking down an order of deportation of an immigrant charged with violence.

5/8/18

Trump's Impact on Labor and Employment Law: Supreme Court Decisions (Part 3)

  

Encino Motorcars, LLC v Navarro et al, __US__, No. 16-1362, decided 4/2/18. Section §213(b)(10)(A) of the FLSA exempts from the Act’s overtime pay provisions “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” Plaintiffs were “service advisors” employed by Encino to consult with customers and sell them servicing “solutions.” Navarro et al sued for overtime pay. Reversing a court of appeals decision, the Court held that a rule issued by the Wage and Hour Administrator in 2011 interpreting the FLSA to exclude service advisors from the exemption was unsupported by the law and logic. Most importantly, Justice Thomas held that the Ninth Circuit erred by relying on the principle that exemptions to the FLSA should be construed narrowly. “We reject this principle as a useful guidepost for interpreting the FLSA,” he wrote. Instead, exemptions deserve a “fair interpretation.”[1] He wrote that since there are “over two dozen” exemptions, they are as integral to the statute as are its requirements. Justice Gorsuch joined in the majority opinion.


The only significant labor law case decided by the Court was actually an administrative law decision. NLRB v. SW General, Inc., 137 S. Ct. 929 (March 2017), casting doubt on hundreds of decisions made by or on behalf of Lafe Solomon, as acting General Counsel of the Board from June 2010 to January 2011. The Court held that the Federal Vacancies Reform Act made him ineligible to serve in an “acting” capacity once President Obama nominated him as General Counsel on a permanent basis in January 2011.  While the Court’s ruling disqualifying Presidential nominees from serving in an “acting” capacity is important on its own footing, the practical labor law consequence of its decision is a huge body of NLRB decisions left open to challenge.


In the usually busy area of employment discrimination the Court failed to resolve a single substantive issue for the first time in many years.  It did, however, unanimously rule in McLane Co., Inc. v. EEOC, 137 S. Ct. 1159 (April 2017), that district court decisions enforcing (or quashing) EEOC investigative subpoenas should be reviewed only for abuse of discretion, and not on a de novo basis.  The Court also reminded district courts not to use their discretion to test the strength of a charge, but shall only satisfy themselves that that the charge is valid and that the requested material is relevant.  A subpoena should be enforced unless the employer establishes that it is too indefinite, has been issued for an illegitimate purpose, or is unduly burdensome.


In Digital Realty Trust, Inc. v. Somers, __US__, No. 16-1276, decided at the end of February 2018, the Court ruled that Dodd-Frank’s anti-retaliation provision is only available to those who actually report securities law violations to the SEC. Somers filed suit after being fired, allegedly for reporting suspected securities law violations to upper management. But the Court held that reprisal for in-house whistle-blowing does not qualify.

    

[1] The opinion appropriately finds that people who sell services are “salesmen”, but discussion thereafter betrays a lack of experience in the practical business of getting the car “serviced.” This is apparent when the majority asserts that “if you ask the average customer who services his car, the primary, and perhaps only, person he is likely to identify is his service advisor.” (at 8).

   

5/8/18

Trump's Impact on Labor and Employment Law: Supreme Court Arguments (Part 4)

  

The Court had granted certiorari in three mandatory arbitration cases, consolidated for argument on the first day of the October 2017 term.  The issue in Epic Systems Corp v. Lewis (No. 16-285) (appealed from the 7th Circuit by the employer), Ernst & Young LLP v. Morris (No. 16-300) and NLRB v. Murphy Oil USA (No. 16-307) is whether agreements waiving class and collective actions and requiring resolution of employment disputes by individual arbitrations are enforceable under the Federal Arbitration Act, notwithstanding the NLRA’s protection of employee concerted activity.


Epic Systems is a Wisconsin-based healthcare data management software company. It has an arbitration agreement that requires workers to take all employment disputes to arbitration, and on an individual basis only Lewis sued for overtime in federal court in a collective action.


During argument the more liberal justices (Breyer, Ginsburg, Kagan, Sotomayor) aimed sharp questions at the employers’ advocate. He contended that Section 7 rights to engage in protected concerted activity were limited to collective action “in the workplace,” and arbitrations were outside the workplace. The employers’ attorney was reminded that the High Court had squarely rejected that contention in the Eastex case, 437 US 556 (1978). The employers argued, unconvincingly, that the rules of the arbitral forum, not the employer, were that class actions were not permitted. The Justices observed that the issue in these consolidated cases was the legality of a provision in the arbitration agreement prohibiting class action, not any restriction imposed by the arbitrator.


Justice Kagan asked whether an arbitration agreement that said the employer would pay the arbitration costs for men, but not women, would be enforceable.  Counsel answered that he would have no trouble concluding that Title VII would prevent enforcement of such an agreement.  When pressed to explain the difference between Title VII and the NLRA, he responded that “it is not a fundamental attribute of arbitration to discriminate on the basis of race, age, or gender.  It is a fundamental attribute of arbitration … to pick the parties with whom you arbitrate.”  But the same cases that hold that parties may specify with whom they will choose to arbitrate, also provide that parties may agree on the rules under which any arbitration will proceed.  So, if an employer imposed one set of rules on female employees and a different set of rules on male employees, the rules the employees agreed to could similarly be described as a fundamental attribute of arbitration.

5/8/18

Trump's Impact on Labor and Employment Law: Title VII, the EEOC, and the DOJ (Part 5)

  

  

Justice Gorsuch joined the Court a year ago. As a Justice he has yet to author an opinion involving labor and employment law. He is an active listener and questioner. Gorsuch has set a tone during arguments of peppering attorneys with questions. During the February 2018 arguments before the Court in Janus v AFSMCE, the public-sector union case, he was atypically taciturn. For a new kid on the block, he’s also showing presumptuousness. In his dissent in Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017), a federal employee case, he lectured (frequently with sarcasm) Justice Ginsburg and the majority about the fundamentals of American government and the appropriate way that members of the Court should decide cases.  Linda Greenhouse wrote this in an op-ed for the New York Times: “He [Justice Gorsuch] is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about.”   


At the Tenth Circuit Gorsuch was the lone dissenter in an employment case involving truckdriver Alphonse Maddin, who was hauling cargo one night in -14° weather. When his trailer’s brakes failed he called his employer for a rescue truck. After several hours in his unheated cab waiting, Maddin drove off in the cab, leaving the trailer. He was fired for abandoning the cargo. He complained to the U.S. D.O.L., which has a regulation forbidding termination of an employee who refuses to operate a vehicle “because…the employee has a reasonable apprehension of serious injury to the employee or the public.” Gorsuch declared Maddin wasn’t fired for refusing to operate an unsafe “vehicle.” He was fired for driving off. The majority held that the tractor-trailer was the “vehicle.” 


Last month he joined the liberals on the Court in striking down an order of deportation of an immigrant charged with violence.

5/8/18

Trump's Impact on Labor and Employment Law: The National Labor Relations Board (Part 6A)

  

1) There have been three chairs of the Board since Trump took office..The acting chair until last week was Marvin Kaplan, appointed by Trump last year. Kaplan came to the Board from the position of Chair at the Occupational Safety and Health Review Commission.  Peter Robb, General Counsel, was appointed by Trump on November 8, 2017. Miscimarra’s term expired December 2017.


Although afterwards the Board became deadlocked 2-2, the Senate on April 12 confirmed a Morgan Lewis management attorney, John Ring, to the Board.  There is a Republican majority, and he is chair.


The Senate vote on Ring was 50-48. Ironically both Democrats and the National Right to Work Committee, hardly allies when it comes to employee advocates and organized labor, objected to Ring’s confirmation. The Committee had urged Trump to steer clear of a fifth commissioner with a hard-core management firm resumé. The reason: between Emanuel (from Littler) and Ring (Morgan Lewis) the Republican majority would recuse itself out of opportunities to reverse Obama Board precedents. 


2) Undoing Rules.  Last December the Board sought public comment on the continuing viability of “quickie” elections. The fast-track election procedure was discussed by Peter Ohr, the Regional Director of the Board’s Chicago office at this seminar in April 2015. The initiative dramatically reduced the turnaround time from the date an election petition is filed to the election date. On average that interval of time was reduced from six weeks to twenty-three days. This procedure also imposed obligations on the employer to compile and produce extensive information about its operations and the employees in the voting unit. Obviously this innovation has been most unpopular in the business community.


The public comment period was extended to March 19. 

5/8/18

Trump's Impact on Labor and Employment Law: NLRB Decisions (Part 6B)

  

The Hy-Brand/Browning-Ferris Muddle


  • Obama Board decides Browning-Ferris (IBT) (2015), ruling that both the entity directly controlling the terms and conditions of employment and an entity indirectly controlling them are joint employers in a representation case.
  • Browning-Ferris appeals to D.C. Circuit, NLRB petitions for enforcement
  • Trump Board decides Hy-Brand (December 2017), rejecting Browning-Ferris. The Board’s opinion takes thirty pages to arrive at the conclusion that Browning Ferris was a mistake. Hy-Brand loses anyway; the prolix opinion finally determines on page 31 that Hy-Brand and its client jointly determined the terms and conditions of the workers’ employment.
  • Trump Board vacates Hy-Brand (January 2018) because a participating Commissioner’s former employer, the national labor law firm Littler, Mendelsson, had represented Leadpoint, the “joint employer” in the Browning-Ferris case[1]. He had taken an ethics pledge and was required to disclose all such possible involvements during the Senate confirmation hearing. The Board Inspector-General found that his explanation for forgetting this connection and not bowing out of the Hy-Brand matter was insufficient and the Board vacated the decision, reinstating the joint-employer standard of Browning-Ferris.
  • Trump Board petitions D.C. Circuit, moves to return mandate.
  • The Competitive Enterprise Institute (a libertarian think-tank) asks the NLRB inspector general to investigate Democrat Commissioner Pearce for “improperly disclosing internal Board deliberations,” i.e., the reversal of Hy-Brand before it became public. 
  • The National Right to Work Legal Foundation is asking the Council of the Inspectors General to investigate whether the NLRB inspector general “disseminated confidential NLRB deliberations” during his investigation of Member Emanuel. FOIA requests are a torrent. 
  • On April 6, 2018 the appeals court grants the motion, but holds the case in abeyance until the Board disposes of the motion for reconsideration filed by Hy-Brand.
  • Peter Robb sends Nasty-Gram to the Board, condemning the order vacating Hy-Brand.

    

[1] An ethics officer at the Board was assigned this issue for inquiry when the union attorney that petitioned for reconsideration in Hy-Brand threw it in as an additional argument in her brief. 

5/8/18

Trump's Impact on Labor and Employment Law: Rules, Handbooks, and "Micro-Units" at the NLRB(Part 6C)

  

Employers who have been keeping up with the Board’s decisions over the past eight years learned that an Administrative Law Judge (ALJ) last October upheld an employer’s seemingly broad rule providing that “all documents are considered confidential” and are not to be “taken off the premises.” The ALJ also upheld the employer’s blanket rule prohibiting texting anywhere. Green Apple Supermarket of Jamaica, Inc. 29-CA-183238. The Obama Board considered “facially neutral” handbook provisions unlawful, under the Lutheran General decision (2004).


The employer’s work rules in Green Apple stated in part: “All documents are considered confidential and the sole property of Green Apple Supermarket and are not to be taken off the premises. There is to be no copying, faxing, or photographing of documents. Failure to comply may result in dismissal and legal action. Texting…is strictly prohibited and will result in a warning.”


Last December the Board went further in the Boeing Company case and overturned Lutheran General. The NLRB rejected the doctrine that an employee could “reasonably construe” a “facially neutral” handbook provision as interfering with Section 7 rights.


Also last December the Board reversed the Specialty Healthcare rule allowing “micro-units” for elections. In Specialty Healthcare & Rehab Center of Mobile, 357 NLRB 934 (2011) the Obama Board drastically modified the “community of interest” test for defining voting units in Board elections. Unions typically seek smaller units; employers contest this and seek larger ones. The traditional approach was to determine whether similarly situated employees should also vote in the unit by the petitioning union.


But in PCC Structurals, Inc., 365 NLRB __No. 160, the Board reinstated the traditional community of interest standard when determining the size and composition of voting units in union elections. The union sought a micro-unit of about 100 welders out of 2,000 production workers. The welders worked closely with other production workers and shared various terms and conditions of employment (similar schedule, shared supervision, constant contact, same benefits, same training, same PPE during manufacturing work).


A strong dissent articulated facts showing that the welders were a trade whose work and physical isolation made them separate from other, lower-paid, less-skilled employees. 


Overreacting to the union community contention that employers reflexively attempted to dilute the petitioned-for unit to maximize “no” votes, the Specialty Healthcare decision imposed a light burden on the petitioning union and a new, onerous burden on the employer: to prove that the wider group shared an “overwhelming community of interest.” Furthermore, employers had to prove “There was no legitimate basis upon which to exclude certain employees from the proposed unit.”

5/8/18

Trump's Impact on Labor and Employment Law: The Department of Labor (Part 7)

   

In February 2017 Andrew Puzder withdrew from consideration, 2 days after Michael Flynn resigned and Vincent Viola withdrew from consideration as Army Secretary. Since being confirmed last April, Secretary of Labor Alexander Acosta has declared that his agency’s mission is “jobs, jobs, and more jobs.” His new Deputy Secretary will be Pat Pizzella, who has served as a member of the Federal Labor Relations Authority since President Obama appointed him four years ago. He has deep experience in public service and has a residence in North Carolina. 


In the sprawling organizational chart for this agency, one notices numerous vacancies and acting place holders in key positions (Chair of the Administrative Review Board, Assistant Secretary for Mine Safety, Assistant Secretary for Policy, Acting Administrator for Wage & Hour Division, Acting Commissioner of BLS, and the Assistant Secretary for OSHA). Note that generally acting officers in an agency don’t do anything very extraordinary. They’re biding time.


The agency’s website seems to be designed with homage to Karl Rove, who counseled: “Never stop campaigning.”


a) Dismantling

The DOL played a key role in implementing the workplace fairness Obama agenda during the last administration. The Trump DOL has rolled back many Obama-era regulations, such as: 


  • Ending a narrow reading on requirements for drug testing among applicants for unemployment benefits,
  • proposing a new rule to end the prohibition on tip pooling between servers and other personnel at restaurants such as bartenders, hosts, and dishwashers, and
  • proposing a rescinding of the so-called “persuader rule,” which required attorneys advising employers facing union campaigns to make mandatory disclosures of their clients.

The DOL has also moved to reverse three major administrative interpretations of the Fair Labor Standards Act (FLSA) that had a significant impact on employers: 


1) The interpretation regarding which workers are considered independent contractors. The DOL has withdrawn a 2015 administrative interpretation that for the first time began with the presumption that a worker is an employee, rather than an independent contractor. This interpretation put the burden on companies to show that a worker was not an employee.


2) Which employers are considered “joint employers.” Prior to the Obama-era interpretation, the DOL considered companies joint employers when they had “direct control” over workers, including the power to hire and fire.


3) Raising the minimum salary for the white-collar exemption.


The Obama-era white collar proposed rule had raised the salary minimum for classifying workers as exempt from overtime. The Obama regulation never went into effect due to an injunction issued by a Texas federal district court in November 2016. The DOL then issued a new request for information (RFI) asking for public input to help guide potential new rules. Public comment on the RFI closed Sept. 25, 2017.


The Trump DOL has “rescinded” (dumped) the six-part standard for evaluating interns as employees entitled to compensation (2010). The DOL instead adopts a “holistic” approach pivoting around the test of which side of the bargain derives more value: the intern or the intern’s place of work. Who is the “primary beneficiary?” 


b) New, non-reactive innovations.

 

1) PAID Program: In recent months the DOL announced a 6-month pilot program, “P.A.I.D.” (Payroll Audit Independent Determination).


2) Opinion Letters: Beginning January 5, 2018, the DOL Wage and Hour Division has issued nineteen opinion letters. A sampling shows they are well reasoned and very instructive. Many of these were the product of re-evaluating opinion letters from 2009 that were withdrawn and have now been re-issued. 


c) Office of Federal Compliance. The OFCC has actually been going great guns. Since the beginning of 2017, conducting a number of audits way above average. It conducted “town hall” assistance sessions last fall and is sending out surveys to all federal contractors to improve communication, transparency, and timeliness. It is also instituting “pre-determinate notices” that solicit the contractor’s response. 


d) OSHA. In 2016 the DOL issued its standard for protection from respirable crystalline silica. 29 CFR 1926.1153. The silica standard applied to the construction industry in 2017 and this year (June) it will also cover general industry. 29 CFR 1910.1053. 


e) An amendment to the FLSA in the omnibus budget bill bars employers from retaining tips received by their employees, but permits distribution to non-tipped employees.