In a flurry of high-profile decisions issued on the eve of NLRB Chairman Phillip Miscimarra’s term’s expiration, the NLRB has announced employer-friendly standards reversing recently adopted analyses and restoring the historical analyses in perhaps the two most watched (and criticized) categories of employer unfair labor practice (ULP) charges: (1) evaluating work rules for impact on protected concerted activity (formerly the Lutheran Heritage analysis); and (2) joint employer liability (formerly the Browning-Ferris analysis).
Impact on Employers:
As a result of the “new” work rule analysis, employers will be less likely to face scrutiny of employee handbook provisions. Employers now have broader discretion to implement and enforce handbook provisions relating to civility in the workplace and workplace safety (i.e., no cell phone/camera policies, social media). Employers who have dramatically trimmed employee conduct policies have some freedom to reinstate more usable and effective rules, but should note that this area of law is almost certain to fluctuate based on the presidential administration in power.
With the reversal of the joint employer analysis, employers will have less labor risk (bargaining obligations and strikes) when engaging third parties like staffing companies, temporary workers, or co-located workers. Critically, the prospect of becoming bound to a bargaining obligation with another entity’s employees will be substantially less likely. Avoiding joint employer liability will focus more limiting actual control and direction of non-employees and less on the contractual arrangements with other entities supplying those employees. While this change is unlikely to dramatically change the scope of outsourcing, employers can have more certainty of the scope of potential ramifications and liability in using third party workers.
Wishing you a happy and healthy Thanksgiving with your friends and family.
– The Employer Report Team @ Baker McKenzie
You’re invited to our live Annual California Employer Update on December 14 in Millbrae, California to discuss the adventures ahead for California employers.
Join us as we sit around the proverbial campfire to discuss the most significant legal developments in 2017 and how to prepare for 2018.
Covered topics will include:
- New wage and hour updates
- California’s new salary history ban and what it means for recruiting
- New transgender protections and guidelines for preventing workplace harassment
- California’s new statewide ban-the-box law
- Immigration changes affecting California employers
- And much more!
We will also share a few international trends, such as:
- The spread of global gender pay gap reporting regulations
- New data privacy regulations in the EU effective in 2018
- Pitfalls to avoid in outsourcing projects
- What to know about protecting company trade secrets globally
See the invite and RSVP HERE!
Life starts all over again when it gets crisp in the fall.
– F. Scott Fitzgerald
After two years of blogging to our friends in the Lone Star state, we are excited to announce that we are embracing the opportunity for new beginnings this fall. We are turning over a new leaf and expanding our blog to reach all US employers, including those managing operations outside of the US.
The new Employer Report provides legal updates and practical insights about the latest labor and employment issues affecting US multinationals, at both the domestic AND global level.
The original site will be redirected, so no action necessary on your part (other than to spread the word!). The Employer Report will be updated regularly by our US Employment and Compensation lawyers with insights covering a wide range of labor and employment topics, including wage and hour updates, new compliance obligations outside the US, trends concerning the gender pay gap, and much more!
We appreciate your continued support and hope you enjoy the Employer Report.
In a move that will surprise few, the federal Office of Management and Budget (“OMB”) has “stayed” the upcoming EEO-1 compensation data reporting requirement, pending further review. As we previously wrote about here, in 2016, the Equal Employment Opportunity Commission (“EEOC”) implemented a rule requiring employers with 100 or more employees (and federal contractors with 50 or more employees) to include compensation data in their annual EEO-1 reports. Covered employers were already required to file an EEO-1 report tracking race/ethnicity and sex; the stay does not impact this requirement. Continue Reading Federal Government Hits Pause on Upcoming Pay Reporting Requirement
The days of the “one size fits all” job application may soon be coming to an end. As federal, state, and local governments increasingly heighten employer hiring process requirements, national employers must be diligent to avoid getting tripped up by the varying rules across different locations. This post will discuss three hiring requirements that are increasingly leaving companies exposed to risk.
After a contentious confirmation process, on April 7, 2017, the Senate confirmed Tenth Circuit Judge Neil Gorsuch to fill the Supreme Court seat that has been vacant since the death of Justice Antonin Scalia in February 2016. On April 10, 2017, Gorsuch, a former clerk of current Justice Anthony Kennedy, was sworn in by Kennedy. Now that Gorsuch has taken his oath, he is ready to participate in the Supreme Court’s next round of oral arguments, which are set to begin on April 17. Continue Reading Neil Gorsuch Fills Vacant Supreme Court Seat
The Transportation Security Administration has announced that by 3 AM EDT on March 25, 2017, passengers on flights to the United States from 10 specific airports will be required to check any electronic devices larger than a smartphone. The affected airports are all in North Africa and the Middle East, and include some of the most frequently used airports among international business travelers. As a result, employees who might otherwise plan to work on the plane will be limited to those tasks that can be performed either from their phones or on paper. Employers should communicate these restrictions to employees who travel internationally so they can be better prepared. Continue Reading Travel Warning: TSA Bans Large Electronic Devices on Certain Flights to the US
In recent weeks, the developing landscape on immigration enforcement has dominated the media. In a quick refresh of an internet page, headlines alert us to new reports of potential immigration crackdowns, increases in deportations, confusion at ports of entry, legal challenges to the Executive Orders issued last month, and additional Executive Orders to potentially follow. On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly issued two Memoranda (“Implementing the President’s Border Security and Immigration Enforcement Improvement Policies” and “Enforcement of the Immigration Laws to Serve the National Interest”) that outline how DHS plans to implement the Executive Orders on border security and interior immigration enforcement signed by President Trump on January 25, 2017. While the DHS Memoranda (or guidelines) do not speak directly to the integrity of foreign worker visa programs, they may prove a harbinger to US multinational employers of aggressive enforcement directives that may underpin the business-related aspects of the current administration’s overarching immigration policy.
To read more, click here.