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On June 23, 2020, the National Labor Relations Board (“NLRB”) ruled that newly-represented employees can be disciplined under existing disciplinary policies even if no bargaining has occurred. 800 River Road Operating Company, Inc., 369 NLRB No. 109 (2020). For the first eighty years of the National Labor Relation Act’s existence, this had been the law of the land. A surprise decision four years ago in Total Security Management Illinois, 364 NLRB No. 106 (2016), upended this rule by requiring an employer to bargain with its employees’ newly certified representative (union) before “serious” discipline could be imposed. The 800 River Road decision returned an employer’s bargaining obligation to that historical and long-standing status – discipline consistent with an existing disciplinary policy is permissible even if the employer has not bargained about the discipline with the employees’ representative. The 800 River Road decision places a premium on well-crafted employee handbooks and disciplinary policies and a solid record retention policy to demonstrate the employer’s record of enforcement.

The decision is only the most recent decision in the long-running debate over the proper interpretation and application of the unilateral change doctrine enunciated by the Supreme Court in NLRB v. Katz, 363 U.S. 736 (1962). In Katz, the Court held that upon commencement of a bargaining relationship, employers “are required to refrain from making a material change regarding any [mandatory] term or condition of …employment…unless notice [of the change] and an opportunity to bargain is provided to the union.” (Slip op.3). Immediately following this sweeping generalized holding, employers ceased providing annual wage increases under existing compensation policies. The NLRB responded by creating the “dynamic status quo” policy. The dynamic status quo exemption to the Katz rule is applied when an employer’s practice or the policy itself becomes a term or condition of employment.Continue Reading Order Restored, No Duty to Bargain Before Employee Disciplined

On June 15, 2020, the US Supreme Court changed the face of federal workplace anti-discrimination laws. In Bostock v. Clayton County, the Court ruled that Title VII’s prohibition against job discrimination on the basis of “sex” includes sexual orientation and gender identity. Though Title VII of the Civil Rights Act of 1964 has long-prohibited employers from discriminating on the basis of color, national origin, race, religion, and sex, the question of whether sexual orientation and gender identity were included in the definition of “sex” went unsettled — until now.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Neil Gorsuch wrote for the court in the 6-3 opinion. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Justice Gorsuch and fellow conservative Chief Justice John Roberts joined liberal Justices Breyer, Ginsburg, Kagan, and Sotomayor in the majority.Continue Reading Support for LGBTQ Rights, with a Signal for Religious Liberty: What Does Bostock Actually Mean for Employers?

In the wake of the economic downturn resulting from the COVID-19 pandemic, government investigations into perceived preferential treatment of foreign workers by U.S. employers is expected.

At-risk companies include those in industries that typically employ a higher number of foreign workers under H-1B, H-2A and H-2B visas, from technology and consulting to hospitality and food …

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of Connecticut, New Jersey and New York announced a joint travel advisory, directing anyone (including their own residents)

…

On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act into law. The Flexibility Act amends the Paycheck Protection Program (PPP) provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in several important ways, including by giving borrowers more time to spend loan funds and still obtain forgiveness, increasing the amount of non-payroll costs that may be forgiven, and creating two new “safe harbors” that allow borrowers to achieve full forgiveness despite reductions in employee headcount or wages.

Congress enacted the PPP provisions largely to allow small businesses to meet their payroll obligations and avoid layoffs during the pandemic. To encourage businesses to keep their workforces and payrolls intact, the CARES Act provides that employers who do not reduce headcount or wages and salaries during certain measurement periods may qualify for forgiveness of their PPP balances. However, under the CARES Act as originally enacted, forgiveness is reduced or eliminated if employers lay off workers or reduce their wages.

One of the new “safe harbors” allows employers who have been unable to operate at the same level of business activity as a result of compliance with COVID-19 related federal safety guidelines and closure orders to obtain full forgiveness even though they have reduced employee headcount. But if employers can fit within the Flexibility Act’s new safe harbor, is it really “safe” for them to do so? We offer insight below.
Continue Reading Is it Safe to Rely on the PPP Flexibility Act Safe Harbor for Reduced Activity Levels?

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of Georgia, Hawaii, Vermont and Wyoming extended their state’s shelter in place orders.
  • Several states have entered or

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We hope you have found our video chat series helpful and informative. We are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work. Each 15-minute Q&A session offers targeted…

Yesterday evening, the President signed a Proclamation expanding the restrictions outlined in the April 22 Proclamation in an effort to protect the U.S. workforce amidst the economic downturn related to the ongoing COVID-19 pandemic. The Proclamation suspends the entry of any individual pursuant to H-1B, H-2B, L, and J nonimmigrant status, and their dependents (H-4, L-2, and J-2), until December 31, 2020. The Proclamation applies to individuals who are currently outside of the United States and are not in possession of a nonimmigrant visa or other official travel document valid as of June 24, 2020. In addition, the Proclamation extends the restrictions on the issuance of immigrant visas outlined in the April 22, 2020 Proclamation through December 31, 2020. This Proclamation contains a range of exceptions, which are detailed below.

The Proclamation is separate from Embassy and Consulate closures and COVID-19 related restrictions on travel to the US from certain countries, which continue to remain in effect. Yet, those measures must be read in conjunction the latest Proclamation. The June 22 announcement imposes further restrictions on the movement of foreign national employees into the United States that likely has a wider impact on US employers than the April 22 Proclamation.Continue Reading Latest COVID-19 Related Presidential Proclamation on US Immigration Expands Restrictions and Impacts Nonimmigrant Visa Applicants Abroad

Across the country, minimum wage rates will increase July 1 in several counties, cities and states. A few jurisdictions have postponed their scheduled increases in light of the COVID-19 global pandemic, but most jurisdictions have not, and employers will need to implement the higher minimums by month’s end. Below we summarize for you the upcoming increases.

California

The Bay Area cities of Hayward and San Carlos voted to delay their local minimum wage increases until January 1, 2021. Other jurisdictions are considering delays, but for now, local minimum wages will increase in the following jurisdictions effective July 1, 2020.Continue Reading Minimum Wage Increases in July 2020: Are You Prepared?

Last week the D.C. Circuit Court of Appeals reversed a National Labor Relations Board’s decision involving Weingarten rights, the application of its Wright-Line analysis, and a witness credibility determination. These core principles are no doubt headliners of the NLRB’s Big Top. In one fell swoop, the lion bit the lion tamer, the elephant tossed the mahout, and the trapeze artist lost his grip and came crashing down. Circus Circus Casinos, Inc., v NLRB, No. 18-1201 (June 12, 2020). This is the second recent decision tightening the Wright-Line analysis and will likely result in fewer discharged employees being reinstated. See our August 2019 Alert. “NLRB Holds Pretext Finding Standing Alone Insufficient.”
Continue Reading NLRB Tumbles From High-Wire in Circus Circus Dispute