Monday, December 22, 2014

NLRB Implements Final Rule on "Quickie Elections"

In one of a flurry of important actions taken just before the end of Member Sharon Block's term on December 16, 2014, the NLRB has announced that it has approved the final rule overhauling representation election procedures.  The NLRB voted to approve these regulations 3-2, with both Republican Board Members dissenting.

These regulations will implement the most sweeping changes to NLRB election procedures in decades.  Designed to hasten the already rapid pace of the election process, under the new regulations pre-election hearings must be set to begin no later than 8 days after the representation petition is filed.  By noon on the first day of the hearing, the employer must submit a written statement of position listing all prospective voters, and addressing potential legal arguments regarding unit placement and voter eligibility.  For the first time, these lists must include not just employee addresses, but telephone numbers and email addresses.  The regulations also eliminate the right to NLRB review of Regional Director determinations, and replace the process with a discretionary review process.

These regulations, which go into effect on April 15, 2015, will have critical implications for employers, which often are unaware of any organizing activity until a petition is filed.

--Jonathan Nadler

--Jon Nadler

Wednesday, December 10, 2014

Unanimous Supreme Court Rejects FLSA Claim for Time Spent in Mandatory Security Screenings

The Supreme Court has ruled, in a 9-0 decision, that employees working at an warehouse are not entitled to compensation for time spent waiting to complete mandatory security screenings following their shifts.  The Court explained that to be compensable under the Fair Labor Standards Act, the activity at issue must be "integral and indispensable" to the principal activities that the employee is employed to perform.  In this case, the security screenings -- which could take as long as 25 minutes -- did not meet that test.  As Justice Sotomayor explained in a concurring opinion, the primary job of the employees (working in the warehouse) could be safely performed without the security screenings, unlike the case of a battery plant worker, who could not safely perform the job without taking time to put on (and then take off) protective gear, in which case that time would be compensable.

This decision further clarifies the circumstances in which tasks required before and/or after performing work are compensable, and will impact a number pending FLSA class actions relying on similar theories.

--Jonathan Nadler

--Jon Nadler

Thursday, October 30, 2014

Failure to Specify At-Will Employment Allows Public Employee to Assert First-Amendment Retaliation Claim

The 7th Circuit issued a ruling today reversing dismissal of a First Amendment retaliation claim brought by a former adjunct professor at an Illinois community college (which is a public employer).  The plaintiff was terminated after writing a letter to an outside organization highly critical of the college's treatment of adjunct faculty.

In reversing the district court's dismissal of the First Amendment retaliation claim, the 7th Circuit held that the plaintiff had a protected interest in continued employment -- even though Illinois is an "at-will" jurisdiction and even though the plaintiff's 1-page employment agreement did not expressly provide for any heightened job protection.  However, the court focused on the absence of any language confirming the plaintiff's at-will status, as well as language in the employment agreement dealing with the specifics of the plaintiff's job responsibilities over the course of the academic year, which the court held could be construed to imply an expectation of employment for the year.

For employers, the key point is that for any employee you consider to be at-will, it is important that any employment agreement or employee handbook make this point clear.

--Jonathan Nadler

--Jon Nadler

Friday, October 24, 2014

NLRB Issues Landmark Decision Applying Fee Shifting for Violations of NLRA

In a split decision (3-2), the NLRB today issued a ruling which -- if not reversed on appeal -- would fundamentally change the long-established framework of available remedies for violations of federal labor law, by requiring employers in some cases to pay the attorney's fees incurred by the government and unions in litigating violations of the NLRA.

"Fee-shifting" provisions are the rule under most employment law statutes (Title VII, ADA, FMLA, and most others), and are the single-largest driver in the filing, handling, and resolution of those cases.  Because the potential liability for attorney's fees often far exceeds an employer's potential base liability in such cases, and because employers almost never recover their attorney fees when they prevail, employers often feel no choice but to settle such cases even where they believe allegations of discrimination, etc. have no merit.

During the 1990s, the NLRB previously attempted to apply a fee-shifting remedy to the NLRA, but that ruling was swiftly rejected by the U.S. Court of Appeals for the DC Circuit.  The NLRB now is trying again, in a case that involves allegations of repeated refusals to adhere to prior orders and federal court injunctions.

While the DC Circuit may well again reject the Board's attempt to expand its powers, in the meantime the Board may continue to apply fee-shifting penalty in other cases it deems egregious.

--Jonathan Nadler

--Jon Nadler

Friday, August 22, 2014

EEOC Regional Attorney Makes Controversial Remarks About Conciliation

Following the Supreme Court's grant of cert to decide the extent to which the EEOC's statutory obligation to engage in conciliation is subject to judicial review, the Regional Attorney for the EEOC's Chicago Office recently made some controversial remarks to Law360, as reported here, including that employer challenges to the sufficiency of EEOC's conciliation efforts are just an excuse to run up billable hours.

--Jonathan Nadler

--Jon Nadler

Thursday, August 21, 2014

Noel Canning Fallout Continues

As discussed here, the Supreme Court's ruling in Noel Canning is already causing the Board to spend time re-evaluating -- and, in almost every case, reaffirming -- hundreds of decisions nullified by the Supreme Court's decision.

In the meantime, until reaffirmed by the Board, nullified Board decisions that announced changes in the law are no longer in effect. For example, an ALJ recently ruled that the Board's Noel-Canning-era decision that dues-checkoff provisions survive expiration of a CBA is no longer valid, and therefore dismissed charges against an employer under that theory.

However, because the ideological composition of the Board remains unchanged, most of those decisions will be reaffirmed.

--Jonathan Nadler

--Jon Nadler

Wednesday, August 20, 2014

EEOC Challenging Employer Wellness Programs

The EEOC has announced it is suing an employer over its employee wellness program, alleging that the manner in which the program was operated violated the ADA.  In particular, the EEOC alleges that participation was mandatory, and required "medical examinations" and made medical "inquiries" of employees.  EEOC alleges that when one employee objected, she was made to pay the full cost of her medical benefits, and later was fired.

--Jonathan Nadler

--Jon Nadler

Tuesday, August 19, 2014

EEOC Continues to Take Aggressive Litigation Position, Seeks Punitive Damages

The EEOC announced today that it plans to aggressively pursue a claim for punitive damages against New Prime, Inc., a large trucking firm, for violating Title VII by maintaining a policy providing female trainers for female drivers/applicants, now that a federal court has agreed that the employer's policy was unlawful.  The EEOC's press release states that the employer established the policy in an effort to prevent sexual harassment, following a prior harassment claim involving a female driver trainee.

--Jonathan Nadler

--Jon Nadler

NLRB Obtains Section 10(j) Injunction -- Improper Legal Standard Applied?

The NLRB has announced that it has obtained an injunction under Section 10(j) of the NLRA against Southern Bakeries, LLC.  This is the most recent example of federal courts applying a unique and improperly lenient legal framework to injunction requests by the NLRB -- one that is much more deferential to the party seeking the injunction -- instead of the general standard that the Supreme Court has indicated should apply in cases such as Winter v. NRPC.  To date the Supreme Court has declined to resolve this issue in context of Section 10(j) injunctions.

--Jonathan Nadler

--Jon Nadler

Monday, August 18, 2014

NCAA, O'Bannon Reach Agreement on Details of Injunction

In a story published here, CBS Sports is reporting that after seeking clarification from the court, the NCAA and the plaintiffs in the O'Bannon antitrust case have reached an agreement that the requirements of the court's injunction will go into effect on August 1, 2015, for the 2016-17 year, apparently to avoid difficulty implementing these changes mid-year.

--Jonathan Nadler

Friday, August 15, 2014

Reasonable Accommodation: DC Circuit Reminds Employers That Case-by-Case Approach Required

The DC Circuit issued a decision today reminding employers that in determining whether an accommodation is "reasonable" under the ADA, past practice is important.  Even an accommodation that appears unreasonable on its face, such as a so-called "maxi flex" schedule, may be deemed reasonable if the employer lived with it in the past.

The decision is here

--Jonathan Nadler

--Jon Nadler

Saturday, August 9, 2014

U.S. District Court Ruling Overturns NCAA Ban on Athlete Payments

A U.S. District Court in Oakland, CA ruled that the NCAA must permit college athletes to make money from their images, likenesses, and names. Interestingly, the plaintiff is a 41 year old former UCLA college player who is now a car salesman. He discovered that his likeness was being used in a video game without granting his consent or receiving compensation.

--Jonathan Nadler

--Jon Nadler

Friday, July 18, 2014

EEOC Issues Enforcement Guidance on Pregnancy Discrimination and Related Issues

The guidance discusses the requirements of the Pregnancy Discrimination Act, as well as the application of the Americans with Disabilities Act to instances of disability related to pregnancy.

--Jonathan Nadler

Sunday, July 6, 2014

Possible Limits on Noncompete Agreements Pending in Massachussets

Story here:

--Jonathan Nadler

Sunday, June 29, 2014

Lawyers Weigh In On High Court's Recess Appointment Ruling


"The U.S. Supreme Court on Thursday struck down President Barack Obama's three recess appointments to the National Labor Relations Board, but took a broad view of the president's appointment power."

For employers, the short-term significance is that hundreds of NLRB decisions issued between January 2012 and August 2013 are nullified, including key decisions limiting employer rights in the areas of social media, confidentiality during internal investigations, off-duty employee access to an employer's property, continuation of dues-checkoff even after expiration of a collective bargaining agreement, and the obligation to bargain with a newly certified union before imposing serious discipline. However, that impact is likely to be short lived. As was the case after the 2010 decision in New Process Steel, the board is likely to reaffirm most, if not all, of these decisions in the next six to 12 months. The broader impact is a greater likelihood that the NLRB will experience more episodes of paralysis where it cannot act because of lack of a quorum. Under the court's ruling, it appears either the House or the Senate now can prevent a recess of sufficient length to permit the president to make a recess appointment to fill vacancies at the NLRB - and elsewhere - and so unless one party controls the White House, the Senate and the House, the potential for gridlock on this issue appears greater than ever.


--Jonathan Nadler 

Lawyers Weigh In on High Court's Recess Appointment Ruling 

Thursday, June 26, 2014

NLRB v. Noel Canning in Plain English from Scotusblog

NLRB v. Noel Canning in plain English from scotusblog.
--Jonathan Nadler

Philadelphia-based labor relations and employment law attorney Jonathan Nadler applies more than 15 years of experience in his position as a Member of the national law firm Eckert Seamans Cherin & Mellott, LLC. At Eckert Seamans, he represents and counsels clients in a wide range of employment law and labor relation matters. Jonathan Nadler joined the firm after serving as an Associate and then a Partner with Reed Smith LLP in Philadelphia for over ten years.
Jon Nadler’s current practice involves defending clients against claims made under the Family and Medical Leave Act, the Age Discrimination in Employment Act, and other employment and labor laws before state and federal courts and before regulatory bodies, including the Equal Employment Opportunity Commission and the National Labor Relations Board. Jonathan Nadler also represents employers in cases involving union organization, and negotiates collective bargaining agreements. Additionally, he conducts internal investigations and provides counseling on labor and employment matters.
Jon Nadler earned a bachelor’s degree in economics and history from the University of Wisconsin-Madison. He received his Juris Doctor from the University of Virginia School of Law. Mr. Nadler also speaks at seminars and conferences on labor and employment law issues, and writes for national publications such as Forbes, as well as trade publications on US labor laws and their implications for business practices.