NLRB Chair Confirms Board Will Do Rare Rulemaking on Joint Employer Standard

The Chair of the National Labor Relations Board (NLRB), John Ring, confirmed on June 5 that the NLRB will engage in formal “notice-and-comment” rulemaking on the subject of joint employers, about which we have written many times (1, 2, 3, 4, 5). Ring’s announcement was made in a letter to three Democratic senators who had written to him expressing concern that the NLRB was contemplating formal rulemaking on the joint employer issue. Such rulemaking is rare for the NLRB. “Candor requires me to inform you,” wrote Ring, “that the NLRB is no longer merely considering joint-employer rulemaking. A majority of the Board is committed to engage in rulemaking, and the NLRB will do so. Internal preparations are underway, and we are working toward issuance of a Notice of Proposed Rulemaking (NPRM) as soon as possible, but certainly by this summer.”

Confirmation of the plan for formal rulemaking should come as welcome news to employers across the country, many of whom have watched with increasing dismay as the NLRB has issued a variety of shifting joint employer rulings. The NLRB’s joint employer standard addresses the conditions under which two companies may be found jointly responsible for unfair labor practices, union organizing and other collective bargaining matters.   

EEOC Issues New Publications Regarding Mental Health Conditions in the Workplace

As our readers know, the Americans with Disabilities Act (ADA) addresses both physical and mental health disabilities of employees. Under the ADA, employers with 15 or more employees may not discriminate against an employee or applicant on the basis of a qualifying disability. In addition, in certain circumstances, the ADA requires employers to provide a reasonable accommodation to enable the employee or applicant to do the essential functions of the job.

Recently, the Equal Opportunity Commission (EEOC) issued two new publications relating to mental health conditions under the ADA. The publications are set up in a question and answer format. The first publication is aimed at employees and is titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” While aimed at employees, employers will find the publication helpful as a general overview of the ADA issues involved.  In addition, employers may find the publication to be a helpful tool when needing to talk with employees about potential accommodation issues.

The NLRB Finds Terminations Following Employees’ Group Emails Regarding Workplace Concerns Violated the NLRA

In a unanimous decision last month, a three-member panel of the National Labor Relations Board (NLRB) found that a restaurant company violated the National Labor Relations Act (NLRA) when its New York City location fired four employees after the employees emailed other employees and managers to complain about, among other things, work schedules, the company’s tip policies, and the management’s treatment of employees.

The case arose after an employee wrote an email upon her resignation complaining about management’s treatment of employees, tip policies, work schedules, and more. The email included some profanity. The now-former employee sent the email to several employees as well as the owners of the company and several managers. Four of the employees replied-all to the email with positive messages including agreeing with its contents and expressing support and gratitude for the former employee and her message. Three of the four employees had spoken with each other about the contents of the email before they sent their responses. Shortly after the employees replied to the email, all four employees were terminated.

California Supreme Court Establishes New Employee-Friendly Misclassification Standard

Employers that have operations or contractors working in California, beware. On April 30, 2018, the California Supreme Court issued an opinion establishing a new pro-employee standard in worker misclassification cases arising under California state wage and hour law. The opinion overturned three decades of precedent and will likely lead to more rulings that “independent contractors” have been misclassified and are actually employees.

Legislation Proposed to Significantly Alter Minnesota Sexual Harassment Law

Last week, a bipartisan group of Minnesota legislators introduced legislation that, if enacted, would significantly alter sexual harassment law for Minnesota employers. The proposed legislation would amend the Minnesota Human Rights Act (MHRA) to eliminate the decades-old requirement that sexual harassment be “severe or pervasive” to be legally actionable. This proposed change comes amidst the #MeToo movement, which has prompted talk around the country about potential changes to harassment law to foster more respectful and nondiscriminatory work environments. The proposed legislation also follows the resignations last fall of several Minnesota legislators accused of sexual harassment and the Minnesota Legislature’s revamp of its own internal harassment policy and response processes.

Tip Pooling

Tip pooling in the hospitality industry has been affected by a recent act of Congress and a Minnesota class action that have garnered significant attention. The Congressional act will have limited impact on Minnesota employers because they continue to be subject to substantial restrictions on tip pooling under state law. Tip pooling is the practice of sharing tips between front-of-house staff and back-of-house staff. On March 23, 2018, Congress passed a budget reconciliation bill that included a rider amending the federal Fair Labor Standards Act (FLSA) and related tip pooling regulations. The FLSA prohibits employers from keeping tips received by their employees, including allowing managers or supervisors to keep any portion of employees’ tips, regardless whether the employer takes a “tip credit” toward the FLSA’s minimum wage requirement. (Minnesota law does not permit a tip credit in any event.) 

Employer That Failed to Pay Overtime Also Found Liable Under the National Labor Relations Act for Interfering with Protected Employee Rights

Defending a wage and hour class or collective action is one of the most difficult employment law challenges facing companies today. Penalties are steep, attorneys’ fees are significant, and liability can be hard to avoid. Employers should be mindful, however, that they may also face liability under the National Labor Relations Act (NLRA) if they do not properly respond to collective employee concerns raised in wage and hour lawsuits. A recent case, Village Red Restaurant Corp. d/b/a Waverly Restaurant, 366 NLRB No. 42 (2018), exemplifies the additional liability that employers may have under the NLRA if they ignore protected employee rights.