Monday, May 21, 2018

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.

Monday, May 14, 2018

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.

Friday, May 4, 2018

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.

Thursday, April 12, 2018

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.) 

Thursday, March 29, 2018

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. 

Monday, March 26, 2018

Sixth Circuit Court of Appeals Holds That Transgender Discrimination Is Unlawful Under Title VII

Although the Trump administration has signaled its intention to shift away from the prior administration’s efforts to expand LGBTQ+ equity rights in the workplace, a federal appellate court recently held that discrimination based on an individual’s status as transgender or gender-transitioning is prohibited by Title VII of the Civil Rights Act of 1964. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals held that discrimination based on an employee’s status as transgender or gender-transitioning is prohibited sex discrimination under Title VII. In addition, the Sixth Circuit rejected the employer’s religious freedom defense. The Sixth Circuit is the third federal appellate court to rule in the last year that Title VII protections extend to LGBTQ+ status, reflecting a growing split of authority among the federal courts. See Hively v. Ivy Tech Community College (7th Cir. April 4, 2017); Zarda v. Altitude Express (2nd Cir. Feb. 27, 2018).

Wednesday, March 14, 2018

Testing, Testing: The U.S. Department of Labor is Testing a Wage and Hour Self-Reporting Program


On March 6, 2018, the U.S. Department of Labor (DOL) announced a new pilot program, the Payroll Audit Independent Determination (PAID) program. The PAID program encourages employers to self-report inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the DOL, “the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.”

The estimated start date for the PAID program is April of 2018. Here is what we currently know about the parameters of this new program: