This week, the National Labor Relations Board finally came to its senses and adopted the contract coverage test for cases alleging an employer had unlawfully, unilaterally changed employees’ terms and conditions of employment. MV Transportation, Inc. 368 NLRB No. 66 (2019). This week’s decision is likely to change the forum unions select for the enforcement of their labor agreements. Ironically, the decision may compel employers to consider additional bargaining rather than litigation before an arbitrator given there is little opportunity to appeal an adverse arbitration award.

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As previously detailed here, the U.S. Supreme Court’s 2018 Epic Systems decision established that requiring employees to waive their right to pursue collective or class actions does not violate the National Labor Relations Act’s “catchall” protection—the right to engage in “concerted activity”—and courts must enforce arbitration agreements as written.

The Supreme Court not only confirmed the legality of class action waivers under the Federal Arbitration Act, but it also narrowly construed the NLRA’s catchall provision as focused on the right to organize unions and bargain collectively in the workplace.

The Court’s holding that the right to engage in such “concerted activities” does not guarantee collective or class action procedures underpins a recent NLRB decision concerning issues of first impression: imposing and requiring as a condition for continued employment a new class action waiver rule in response to collective action.


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Modern slavery exists today in many forms, including forced labor, involuntary servitude, debt bondage, human trafficking and child labor. According to the Walk Free Foundation’s Global Slavery
Index, published with input from the United Nations’ International Labor Organization and the International Organization for Migration (IOM), as of 2016, an estimated 40.3 million men, women and

Chicago is the most recent city to adopt a “predictive scheduling” ordinance, the Chicago Fair Workweek Ordinance.

Effective July 1, 2020, employers subject to the Ordinance must provide advance notice of work schedules to covered employees. If changes are made to the posted schedule, employers must pay additional wages, “predictability pay,” as a penalty. This penalty applies to both increases and reductions of shifts.


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As detailed in prior posts, in January, the Illinois Supreme Court held that a plaintiff need not plead an actual injury beyond a per se statutory violation to state a claim for statutory liquidated damages or injunctive relief under the Illinois Biometric Information Privacy Act (BIPA). While recent decisions applying BIPA have been largely Illinois-based, the Ninth Circuit recently applied BIPA in Patel v. Facebook to affirm a lower court’s ruling that plaintiffs in the ongoing Facebook BIPA class action alleged a concrete injury-in-fact to confer Article III standing and that the class was properly certified.

The Ninth Circuit is the first federal circuit court to conclude that a plaintiff alleging a BIPA violation has standing for purposes of Article III of the US Constitution. The ruling makes it easier for plaintiffs to certify BIPA class actions, within and outside of Illinois. 
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As of August 1, companies doing business in Mexico can anticipate that unions will move quickly to legitimize existing collective agreements under a new government-issued protocol. Among other steps, the process includes a vote by covered employees to determine whether they approve the terms of the agreement. Collective agreements must be legitimized by May 1,

In inspirational news, the UN’s work and labor agency, the International Labor Organization or ILO, adopted a “Violence and Harassment Convention” and “Violence and Harassment Recommendation” at the Centenary International Labor Conference in Geneva last month.


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This article was originally published on Law360.com

Developed countries across the globe are increasingly adopting and augmenting paid family leave laws, seeing such laws as a “win-win” for both employers and employees. For employees, paid family leave laws allow new parents to bond with and care for their children in the stressful and crucial initial

On July 22, 2019, a three-judge panel for the Ninth Circuit withdrew its holding that Dynamex Operations West, Inc. v. Superior Court—the landmark California Supreme Court decision that makes it harder for companies to rely on independent contractors—applies retroactively. The panel held instead that the question should be decided by the state’s highest court.

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[With special thanks to our summer associate Whitney Chukwurah for her contribution to this post.]

All private employers with 100 or more employees in the US and certain federal contractors with 50 or more employees in the US must report data on race/ethnicity and gender across job categories in their annual EEO-1 filings. As previously reported (HERE), in 2016, under the Obama Administration, the Equal Employment Opportunity Commission revised the EEO-1 form to require certain employers to report W-2 wage information and total hours worked (referred to as Component 2 Data) for all employees by race, ethnicity and sex within 12 EEOC created pay bands.

The implementation of the revised EEO-1 form has been subject to litigation; however, covered employers now have until September 30, 2019 to provide EEOC with pay data.


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