Wednesday, June 27, 2018


In a highly anticipated 5-4 decision, in which Justice Gorsuch cast the deciding vote, the U.S. Supreme Court overruled its own previous case and held today that a labor union may not require employees in the public sector to pay for its services. The decision, Janus v. AFSCME Council 31, may significantly weaken unions operating in both the public and private sectors and throw labor relations between government workers, their employers, and their unions into turmoil.

Tuesday, June 26, 2018

Class Action Tolling in the Wake of China Agritech—The Good and the Bad for Employers

Earlier this month, the U.S. Supreme Court addressed whether, after denial of class certification, a putative class member can file a new class action after the applicable statute of limitations has expired, as opposed to joining an existing case or pursuing an individual lawsuit. The Court held, in China Agritech, that this is not allowed, creating potentially significant ramifications for employers. Had the Court ruled the other way, claimants who were unsuccessful in obtaining class certification might have had the ability to perpetually file new class actions, one after the other, in a never ending effort to obtain class certification.

Wednesday, June 6, 2018

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.   

Friday, June 1, 2018

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.