BLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.
Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent. Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.
Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading
By: Kara M. Maciel and Dan Deacon
On September 20, 2016, business groups and states filed two lawsuits in the U.S. District Court for the Eastern District of Texas challenging President Obama’s new overtime rule that is set to take effect December 1, 2016 . Twenty-one states banded together to challenge the U.S. Department of Labor’s (“DOL”) new overtime exemption rule in States of Nevada et al. v. United States Department of Labor et al, Case No. 1:16-cv-004070., and the U.S. Chamber of Commerce, leading a coalition of 50 national and Texas business groups, filed a similar lawsuit in Plano Chamber of Commerce et al. v. Thomas Perez et al. Case No. 4:16-cv-00732. The two lawsuits argue that DOL unconstitutionally overstepped its authority to establish a federal minimum salary level to qualify for the Fair Labor Standards Act’s (“FLSA”) white collar exemption and violated the Administrative Procedure Act (“APA”).
The New Rule & its Impact on Employers
The long awaited controversial rule was released in May 2016 to the disdain of employers, as we’ve explained in prior blog posts. The most significant change in the final rule is the new $47,476.00 minimum threshold salary required to qualify as an exempt employee, representing more than a 100% increase from the present level and a huge financial undertaking for employers. All employers throughout Continue reading
The Summer/Fall 2016 issue of Virginia Human Resources Today Magazine featured an article by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding “The Impact of the 2016 Presidential Election on the Supreme Court and Employment Law.”
The article discusses the influence that the next President will have on shaping the Supreme Court – with the potential to nominate up to four new Supreme Court Justices – and the impact that this could have on employers, unions, and the workplace in the near future. In light of Justice Scalia’s death, the Court is more or less split between liberal and conservative Justices. The current political landscape leading up to the election suggests that Donald Trump will nominate a conservative justice that could step into Justice Scalia’s role on the bench as a heavy conservative justice and Hilary Clinton will nominate a candidate more akin to Justice Sotomayor – arguably one of the most liberal justices currently on the Supreme Court. The President’s ability to appoint the next Supreme Court justice to replace Justice Scalia and the potential to appoint three more will surely influence the law on several important labor and employment law issues including a union’s ability to collect fees from workers who do not join the union, the Affordable Care Act’s contraception mandate, and employer grounds to challenge class action lawsuits. Ultimately, there is a lot at stake in this year’s presidential election – not only will it determine who will lead the country’s executive functions and federal regulatory agendas, but it will also have a dramatic and long-standing impact on the future of the Supreme Court and judicial opinions impacting workers and workplace rights for years to come.
To read more on this interesting topic, here is a link to the full article in Virginia Human Resources Today Magazine.
In 2015, Montgomery County implemented Maryland’s first paid sick and safe leave statute, The Earned Sick and Safe Leave Law, which becomes effective on October 1, 2016. The law applies to all employees that perform work in Montgomery County. Under the law, employees who work for employers with 5 or more employees earn sick and safe leave at a rate of one hour for every 30 hours of work in Montgomery County, up to 56 hours or approximately 7 days of leave per calendar year. Employees who work for employers with fewer than 5 employees must earn one hour for every 30 hours worked in Montgomery County, but only up to 32 hours or approximately 4.5 days per calendar year.
As has been seen in similar paid leave laws developing throughout the country, under Montgomery County’s statute leave can be used for (1) medical care of employee or employee’s family member; (2) closure of employer’s place of business or school/child care by order of a public official due to public health emergency; (3) care of a family member with a communicable disease that could jeopardize the health of others; or (4) obtaining medical or legal services for or participation in a proceeding related to domestic violence, sexual assault or stalking committed against the employee or the employee’s family member.
Similar to DC’s paid sick and safe leave law, employees must begin accruing leave on their first date of employment, but may be prohibited from using the leave during the 90-day initial probationary period. Employers must permit leave to be carried over from year to year (up to 56 hours), but can cap use of accrued and carried-over leave to 80 hours per calendar year. The law also requires employers to provide a written statement of available sick and safe leave to employees each time wages are paid.
Pursuant to this law, an employer must notify employees of their entitlement to leave by posting and in its written policies, usually the employee handbook. Although this may require some employers to implement a new policy, many employers may already have policies that meet these basic requirements. A general PTO policy that permits accrual of paid leave at the same or a greater rate and use of the paid leave for any reason, may simply need to be updated to encompass all of the permitted uses of leave, an anti-retaliation statement, and information about the employee’s rights to file a complaint. Employers also should ensure accrual is not prohibited. Policies must be carefully reviewed and revised, if necessary, to meet the qualifications of this law by or before October 1st.
This shift in the law is especially significant because of what it reflects for Maryland as a whole. Maryland’s Healthy Working Families Act has gained renewed momentum in light of Montgomery County’s law and a similar law currently being considered in Prince George’s County. The Act would similarly provide full-time employees up to 7 days of paid sick and safe leave and would, as it’s currently written, apply to all employers with 10 or more employees. Employers with 9 or fewer employees would have to provide unpaid leave. Although this proposed law has been introduced and reintroduced multiple times without success, there may be enough support in the state to push it through the Maryland government based on the implementation of one such law within the state already.
Even though the DOL has not been cleared to issue its contentious blacklisting rule under President Obama’s “Fair Pay and Safe Workplaces” Executive Order (“the Blacklisting Rule”) – and despite legal and congressional challenges – the National Labor Relations Board (“NLRB”) is forging ahead with its own plan to collect data that could tarnish federal contractors and bidders as a company with a history of labor disputes.
Under the Blacklisting Rule, federal contractors bidding on jobs worth at least $500,000 are required to report data on labor violations, such as citations by the Occupational Safety and Health Administration, in their contract bids. The federal government plans to implement the rule partly by compiling contractors’ information in a DOL database; newly appointed Labor Compliance Advisors at contracting agencies will use that data as part of determining contractor “responsibility” in awarding federal jobs. The DOL has a pending rule under White House review to carry out Obama’s Order and does not yet have the go-ahead to implement this new database.
Still, in a pro-labor friendly move that is not uncommon of the NLRB in recent years, the agency has started to collect data under the Blacklisting Rule’s disputed tracking system. Continue reading
By: Kara M. Maciel and Lindsay Smith
On July 11, 2016, the National Labor Relations Board (“Board”) reversed decade old precedent requiring consent from the host employer and a staffing agency before a union election that includes temporary employees could take place. Through its 3-1 decision in the Miller & Anderson, Inc. case, the Board revoked its 2004 Oakwood Care Center holding and reinstated its 2000 decision in M.B. Sturgis by finding that bargaining units covering both regular employees and temporary employees do not require employer approval. Indeed, the Board explained that based on the broad definition of employee in the National Labor Relations Act (“the Act”) and Congress’s “statutory charge” to the Board, it interprets the term “employer unit” in Section 9(b) be made up of both employees solely employed by the host employer and joint employees employed by both the host employer and the staffing agency, when those employees share a community of interest. In a statement released regarding its decision, the Board made clear that host employers would be expected to bargain as usual with their regular employees, and “will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”
The main argument against reversal of the Oakwood Care Center decision and the problem that arises in permitting such a bargaining unit, as explained in Board Member Philip Miscimarra’s dissent, is that Continue reading
Update: June 27, 2016
The DOL has been ordered by a federal court not to enforce the Persuader Rule on a national basis after July 1, 2016 because the court was persuaded (sorry for the pun) that the rule would cause irreparable harm to business groups.
Had the final rule not been enjoined, after July 1, 2016, in accordance with the DOL’s Persuader Rule, all employers will be required to report financial agreements with consultants and attorneys retained to give advice that could be viewed as efforts to “persuade” workers on union-related matters.
As we reported when the DOL published the final rule in March 2016, the new rule imposes substantial reporting obligations on employers. The old rule required reporting if the consultant engaged in direct persuader activity, such as if the consultant directly communicates with employees about union representation. The new rule adds reporting for indirect persuader activities; for example, when providing communication materials to employer to hand out to employees. These activities typically, but not exclusively, arise in the context of a union organizing drive. The final rule provided that it applies to “arrangements and agreements as well as payments (including reimbursed expenses) made on or after” July 1.
But, in an important development, the DOL has recently interpreted its new Persuader Rule Continue reading