June Kicks Off with a Flurry of Labor and Employment Law Developments and Activity

DOL Actions Undercut Obama Administration on Joint Employers and Independent Contractors

In the past week, the U.S. Department of Labor (“DOL”) under new Labor Secretary Alex Acosta has moved to dismantle a series of the Obama Administration’s rules and guidance regarding employment regulation. Continue reading

DOL Takes Action to Rescind the Persuader Rule

In March 2016, the Department of Labor (“DOL”) published a revised “Persuader Rule” requiring attorneys involved in union organizational campaigns to file broad public financial disclosures about their own and their law firm’s compensation related to these efforts. Traditionally, persuader activity had to be publically reported only if an attorney communicated directly with a client’s employees regarding union activity. The revision expanded these public reporting requirements to include any advice that “indirectly persuades” a client’s employees regarding union organizing and collective bargaining, even if the persuader had no direct contact with employees. The revisions were aimed at, among other things, discouraging law firms from being involved in organizational campaigns to avoid such disclosures. The revisions, however, also infringed on the attorney-client privilege. Continue reading

Title VII Prohibits Employment Discrimination Based on Sexual Orientation – So Says the 7th Circuit

On Tuesday, the Seventh Circuit Court of Appeals became the first federal circuit court of appeals to decide that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on an employee’s “sexual orientation.”  In Hively v. Ivy Technical Community College of Indiana, the Court ruled 8 to 3 that Title VII’s prohibition of employment discrimination based on “sex” includes a person’s “sexual orientation.”  The Seventh Circuit’s ruling, while consistent with the Equal Employment Opportunity Commission’s position, is in conflict with every other federal circuit court of appeal which has addressed the issue.  Continue reading

On Second Thought, DOL Proposes 60-Day Delay to Fiduciary Rule Applicability Date

On March 1, 2017, the Department of Labor’s (DOL) issued a proposed rule to extend the Fiduciary Rule applicability date by 60 days. The current applicability dates for the Fiduciary Duty Rule and prohibited transaction exemptions are set for April 10, 2017.  The extension would move the applicability dates to June 9, 2017. Continue reading

Supreme Court Upholds Decision to Vacate NLRB Order Due to Improper Appointment of NLRB General Counsel

On March 21, 2017, the Supreme Court upheld an August 2015 opinion by the D.C. Circuit under the Federal Vacancies Reform Act holding that former acting National Labor Relations Board General Counsel Lafe Solomon improperly served as acting general counsel while awaiting confirmation from the U.S. Senate to a permanent appointment. NLRB v. SW General, Inc., Slip Op. 15-1251 (Mar. 21, 2017). Chief Justice John Roberts wrote the opinion for the majority, which was joined by Justices Kennedy, Thomas, Breyer, Alito, and Kagan. Continue reading

Ohio GOP Bill Would Give Counties, Cities Option on Paying Prevailing Wages

Ohio’s counties and cities would have the ability to decide whether they want to pay state-mandated prevailing wages on taxpayer-funded projects, or allow contractors to bid on projects without such requirements, under a bill expected to be introduced in the General Assembly this week.

State Sen. Matt Huffman (R-Lima), who is sponsoring the bill, said that local governments could save money by paying market-rate wages rather than the prevailing wage, which is set by the Ohio Commerce Director and establishes the minimum hourly wage as well as benefits that workers may be paid, based on their trade and the location of the job. Continue reading

“Right-to-Work” Momentum Building in 2017

In the early months of 2017, right-to-work legislation continues to garner significant attention as a number of states explore legislation. In early January, Kentucky passed legislation prohibiting employers from entering agreements that make union membership and the payment of union dues a condition of keeping or maintaining employment. Missouri followed suit one month later on February 6 by passing its own similar legislation, thereby becoming the 28th “right-to-work” state. In addition to making it illegal to condition employment on the payment of dues to a union, both laws included a grandfather clause protecting existing contracts negotiated before the laws become effective. Additionally, right-to-work legislation has passed the Senate in New Hampshire and is set for a vote in the state’s House of Representatives. On February 9, the House Labor Committee recommended voting against passage of the bill, which will see a vote of the full chamber next week. Governor Chris Sununu supports right-to-work legislation. The proposed legislation would make New Hampshire the first right-to-work state in the Northeast. Continue reading

Trump Administration Freeze on Regulations

On January 20, 2017, President Trump took a step to fulfill his campaign promise to reduce regulations on businesses when his Chief of Staff, Reince Priebus, directed federal agencies to freeze all pending regulations. Although similar moves are common for incoming administrations, the amount of contentious employment-related regulations pending either before federal courts or awaiting effective dates makes this freeze an important consideration for employers. Continue reading

New Final Claims Regulations Regarding Disability-Related Claims Has Been Issued by DOL

On December 16, 2016, the U.S. Department of Labor (DOL) published a final rule altering the claims procedure regulations for ERISA plans providing disability benefits (the “Final Rule”).  The regulations, which finalize proposed regulations issued in November 2015, amend the existing DOL claims procedure regulations related to any ERISA disability benefit claim, whether the claim arises under a welfare plan (e.g., a long-term or short-term disability plan), or a qualified retirement plan. Continue reading