U.S. Department of Labor Changes Position on Internships under the FLSA

interns wantedAlthough summer seems far away, now is the time when most employers begin to prepare for their summer internship programs.  Internships are a great way to give college students or new professionals some hands-on experience in your industry.  However, one major question that has plagued employers over the past decade is whether an intern must be paid under the Fair Labor Standards Act (“FLSA”) based on the duties he or she performs in the intern role and the structure of  internship program.

While some employers offer paid internships, other internships are unpaid or only provide a stipend lower than the minimum wage.  Given the recent string of high-profile class action cases brought by unpaid interns, for-profit, private sector employers must be aware of the FLSA’s requirements as it relates to unpaid interns.  Specifically, employers need to carefully evaluate whether an intern qualifies as an “unpaid intern” or an “employee” entitled to compensation.   Continue reading

Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron GelbAaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice“We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mark M. Trapp (3)Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,” Kara M. Maciel, Chair of the Labor & Employment Practice reported.

In Flurry of Activity, National Labor Relations Board Restores Pre-Obama Precedent

By:  Mark M. Trapp

Capitol Building

One of the most visible manifestations of the maxim that elections have consequences is illustrated by the regular oscillations in labor policy at the National Labor Relations Board (“Board”) that follow elections in which an opposing party takes control of the White House. After securing the first Republican-majority Board in a decade at the end of September, the Trump administration last week saw that majority quickly act to restore several pre-Obama precedents, setting a much more employer-friendly tone at the NLRB.

In four different cases issued on December 14 and 15, a 3-2 Republican majority reversed decisions issued by the Obama-era Board, each of which upset long-established policies that had survived prior Republican and Democrat administrations. The flurry of activity came on the last two working days of NLRB Chairman Philip A. Miscimarra’s term (which expired on Saturday), for the moment leaving the Board with a 2-2 deadlock between Republican and Democrat appointees. President Trump’s next nominee will again establish a 3-2 Republican majority, so these cases are presumably a preview of things to come.

On Friday, in PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017), the majority reinstated the traditional community of interest standard that had prevailed for many decades before the Obama-era Board changed it in 2011. The 2011 decision in Specialty Healthcare gave much more leeway to unions to select the appropriate bargaining unit when attempting to organize an employer’s employees, as the employer challenging that selection had to prove that the excluded workers shared an overwhelming community of interest with the unit selected by the union.

Overruling the Specialty Healthcare decision, the majority returned to the prior rule, under which an employer bore no such burden. Instead, the Board will determine in each case whether the employees in a petitioned-for group share a community of interest sufficiently distinct from the interests of employees excluded from the petitioned-for group to warrant a finding that the proposed group constitutes a separate appropriate unit. While employers will certainly welcome this decision, as it will likely curtail the proliferation of so-called “micro units,” the decision merely restores a standard that prevailed for most of the Board’s history.

The same is true of the other decision issued on Friday, Raytheon Network Centric Systems, 365 NLRB No. 161 (December 15, 2017). In that case, the Board majority restored 50-year old precedent upset just last year by a decision from the Obama-era Board. In Raytheon Network, consistent with other Board cases dating back to 1964, the majority held that unilateral actions of an employer do not constitute an unlawful change in terms and conditions of employment if they are similar in kind and degree with an established past practice consisting of comparable actions. Accordingly, an employer has no obligation to bargain over such changes before implementation, even if they involve some degree of employer discretion. This most often arises in employer-provided healthcare benefits, which change year over year.

These two decisions followed a pair of decisions on Thursday of last week. In the first, The Boeing Company, 365 NLRB No. 154 (December 14, 2017), the Republican majority overruled a standard placing limits on employer policies which could be “reasonably construed” to limit workers’ rights protected by the National Labor Relations Act. In its place, the Board set forth a new standard. Now, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, might potentially interfere with the exercise of employees’ NLRA rights, the Board will evaluate two things: first, the nature and extent of the potential impact on those rights, and second, the employer’s legitimate justifications for the rule. Balancing these two factors should impact many employer policies, particularly those involving confidentiality, social media and non-disparagement provisions.

The second decision issued Thursday may have received the most attention, as it overturned an Obama-Board decision significantly broadening the standard under which a company can be held responsible as a so-called “joint employer,” an issue that often arises with the use of staffing firms. In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (December 14, 2017), the majority overruled a 2015 Obama-era decision, and reinstated the prior standard in place over several decades. Under that restored standard, two or more entities will be deemed joint employers only upon proof that one entity has directly and immediately exercised control over the terms of employment of the other entity’s employees. The Board also clarified that proof of indirect control, contractually-reserved control that has never been exercised, or control that is limited and routine will not be sufficient to establish a joint-employer relationship.

The now overturned 2015 decision generated much controversy among employers, and prompted the Save Local Business Act, which passed the House in November. It is unclear whether this Act will make it through the Senate

Given that Chairman Miscimarra’s term has now ended, leaving the Board with a 2-2 deadlock, these four decisions may be the only fireworks from the Board for a little while. However, because President Trump will soon get another nominee of his choosing, and the recently-confirmed General Counsel for the Board has telegraphed his intention to overturn a wide range of Obama-era precedent, these decisions are likely a sign of further pro-employer decisions to come.

2018 Legislative Update for California Employers

By: Andrew J. Sommer and Daniel C. Deacon

california-flagCalifornia has had yet another banner year closing the 2017 legislative session with a spate of new employment laws imposing additional compliance obligations on employers.  Bucking the anti-regulatory tide in Washington, DC, California has passed dozens of new laws impacting both private and public sector employers.  Overall, Governor Jerry Brown has vetoed just over 12% of the bills passed by the California legislature this year.

Conn Maciel Carey LLP provides this summary of key new employment bills, regulations and local ordinances impacting California private sector employers.  Unless otherwise indicated, these new employment laws take effect January 1, 2018.

 Statewide “Ban the Box” Law

Continuing a national trend at the state and municipal level, California has passed Assembly Bill (AB) 1008, a statewide “ban the box” law limiting any inquiry into an applicant’s criminal history.  AB 1008 applies to employers with five or more employees, and is markedly different from San Francisco’s “ban the box” ordinance.

The statewide law makes it unlawful for an employer to inquire into or consider an applicant’s criminal history, including seeking such information on any job application, before the employer has made a conditional offer of employment.  In addition, an employer that intends to deny an applicant a position solely, or in part, because of the applicant’s conviction history ascertained after the conditional job offer has been extended must make an individualized assessment of whether the applicant’s conviction history has a “direct and adverse relationship” with the specific duties of the applied for position.  In making this assessment, the employer must consider:  (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.

Continue reading

The Office Holiday Party: Best Practices to Avoid Legal Trouble

shutterstock_holiday party glassesThe holiday season is here, and employees are looking forward to celebrating with their family and co-workers.  However, the office holiday party – an anticipated yearly tradition in many workplaces – has now become a cause for concern for employers, especially amidst the current national conversation about workplace sexual harassment.

What is the result?  Many companies are cancelling holiday party plans, or hosting alternative parties with less alcohol and more day light.

There is certainly nothing wrong with hosting a holiday party, and employers should not be discouraged from doing so.  Hosting a holiday party for your employees is beneficial, as it helps boost employee morale and demonstrates Continue reading

Employers Must Consider the ADA before Requiring Medical Examinations

Depending on your industry, it may be commonplace for you as an employer to require medical examinations of employees for a specific purpose in order to ensure the safety and health of those employees.  This often occurs, for example, in situations where employees have been exposed to a dangerous chemical and relevant laws, such as OSHA regulations, require medical examinations/testing for purposes of assessing and monitoring the impact of the exposure.  From an employer’s perspective, however, the question sometimes arises as to whether, as a reasonably prudent measure, it can also require those employees to submit to medical examinations for other purposes, even if the examinations are not absolutely necessary or required at the time — such as whether there was exposure to any other chemicals or exposure below levels at which medical evaluation is mandated by OSHA.

Medical ExamTo answer that question, an analysis of the Americans with Disabilities Act (“ADA”) is required.  Of course, other federal laws, such as the Genetic Information Non-Discrimination Act (“GINA”), the Health Insurance Portability and Accountability Act (“HIPAA”) and OSHA, also may be implicated in this analysis, as could state disability-related laws and/or privacy laws, but for purposes of this blog post, our analysis is limited to the ADA.

Continue reading

Conn Maciel Carey Welcomes Chicago Partner, Mark Trapp!

Mark M. Trapp (3)

Conn Maciel Carey LLP is pleased to announce that Mark M. Trapp, an attorney with extensive experience defending employers in a broad range of litigation before federal and state courts, the NLRB and other agencies, has joined the firm as a partner in its Labor & Employment Practice Group, in Chicago, Illinois.

 

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws. 

In addition, Mr. Trapp’s experience with multiemployer pension withdrawal liability has been recognized across the country and his articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,” Kara M. Maciel, Chair of the Labor & Employment Practice reported.  

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues and provides a solid platform for my withdrawal liability practice. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.” 

Welcome to the firm, Mark!