Earlier this week, in a 3-1 decision in Macy’s Inc., the NLRB applied its controversial Specialty Healthcare decision in holding that an appropriate bargaining unit consists of employees in the cosmetics and fragrances department at a Boston-area Macy’s store, one of 11 store departments, and excludes all other sales employees at the store. This is the first case in which the NLRB has applied the Specialty Healthcare standard to a retail employer. The NLRB’s decision is unwelcome news for employers, particularly in the retail industry, as it provides support for unions’ increasing efforts in seeking to organize “micro-units” consisting of small, discrete subsets of employees. Continue Reading
Can an employer challenge whether the EEOC has done its job in defense of a case brought by the EEOC? The U.S. Supreme Court has agreed to decide that question. The issue is whether courts have authority to review whether the Equal Employment Opportunity Commission (EEOC) properly engaged in efforts to “conciliate” a case prior to bringing a lawsuit under Title VII of the 1964 Civil Rights Act. As savvy readers know, the EEOC has a statutory obligation, after finding “cause,” to attempt to negotiate a resolution of the discrimination charge prior to filing suit. Continue Reading
On June 18, 2014, we reported that President Obama would sign an Executive Order prohibiting federal contractors from discriminating against LGBT individuals on the basis of their sexual orientation or gender identity. As promised, on July 21, Obama issued the Executive Order. This presidential action amended existing Executive Order 11,246, which applies to federal contractors, by adding sexual orientation and gender identity to the list of classes protected from employment discrimination. This move also amended existing Executive Order 11,478 by explicitly prohibiting gender identity discrimination by federal government agencies for the first time. Continue Reading
On June 12 in Nashville and on June 26 in Memphis, attorneys from the Bass, Berry & Sims Labor and Employee Benefits Practice Groups presented to gatherings of corporate counsel, human resources professionals, state employees, and others about the current state of key issues in employment and benefits law. Below is a list of the top “take-aways” from the seminars. Continue Reading
In a landmark decision, the United States Supreme Court ruled yesterday that President Obama’s three recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. Click here for the ruling. President Obama had relied upon the Constitution’s Recess Appointments Clause to appoint three members of the NLRB. The Court ruled, however, that the “pro forma” sessions in January 2012 when the recess appointments were made were not truly a “recess” of the Senate within the meaning of that provision of the Constitution. Since the NLRB was not lawfully appointed, its decision that the employer in the case, Noel Canning, had violated the law was not a proper finding and was not enforceable against the employer. Continue Reading
Summer is officially here, which for many employers, is the season of unpaid internships. What was once seen as an opportunity for students to get “real-world” work experience during summer break has in recent years become a hotly contested issue. Unpaid intern lawsuits have swept the nation and the U.S. Department of Labor (“DOL”) has taken a firm stance on the topic. Continue Reading
Following a trend that has developed over the last several years, the National Labor Relations Board (the “Board”) recently found that the termination of a Starbucks employee violated the National Labor Relations Act (the “NLRA” or the “Act”), even though the employee had engaged in extremely offensive, obscenity-filled conduct in the presence of customers. During his off-duty hours, the employee, who was supporting a union organizing effort, entered a different location from the one where he worked and engaged in a profanity-laced confrontation with a store manager in the presence of customers.
This was the Board’s second look at the case. Initially, the Board held that the employee’s conduct did not lose its “protected” status under Section 7.  The Board also found that the employer’s rule prohibiting employees from wearing more than one pro-union button while on duty violated Section 7 of the Act. When that decision was reviewed by the Second Circuit Court of Appeals, the Court found that the Board’s decision violated both previous court decisions and the Board’s own precedent. Continue Reading
The Labor Department announced today its plans to propose new regulations on the definition of “spouse” under the FMLA. The new definition of “spouse” will include a legally married same-sex spouse, regardless of the employee’s state of residence. This rule, though not unexpected, is a change from an August 2013 “Fact Sheet” issued by the Labor Department that relied upon the definition of marriage in the employee’s state of residence.
By this rule, if adopted, employers in all states would be required to provide leave to legally married same-sex spouses even if the state of the employee’s residence or the state of the employer’s business does not recognize same-sex marriage. It is worthy to note, however, given the Supreme Court’s highly publicized decision in Windsor, that the various federal challenges to the laws of those states not recognizing same-sex marriages will be successful to erode, and ultimately to eliminate, all of the state laws and regulations that do not recognize same-sex marriages.
The White House and the Department of Labor (DOL) released a proposed rule that would raise the minimum wage for employees under federal contracts from $7.25 to $10.10 per hour, a 39% increase. The proposed rule implements Executive Order 13658, Establishing a Minimum Wage for Contractors, which was signed by President Obama on February 12, 2014. That order applies to new and renegotiated contracts starting January 1, 2015. Continue Reading
The White House has announced that President Obama will sign an executive order prohibiting federal contractors from discriminating against individuals on the basis of sexual orientation or gender identity, a move the White House hopes will pressure Congress into passing legislation banning employment discrimination against the lesbian, gay, bisexual and transgender (LGBT) community. The Senate passed the Employment Non-Discrimination Act in November 2013, but the legislation stalled in the House.
Government contractors already are prohibited from considering race, gender, religion or national origin when hiring employees. This executive order will provide the first specific anti-discrimination protections for the LGBT community and is estimated to apply to approximately 20% of the U.S. workforce (14 million workers). The White House has not indicated when President Obama will sign the executive order and the specific language has not been released, however, the order likely will be in line with current measures banning federal contractors from discriminating against employees on the basis of race, religion, and national origin.