Arbitration Agreements Must Exempt NLRA Claims According to the NLRB

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All Employers Subject to the NLRA

EFFECTIVE

June 18, 2019

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In Prime Healthcare, the National Labor Relations Board (NLRB) stated that an arbitration agreement that did not expressly exclude claims filed with the NLRB was invalid. There, the arbitration agreement simply required that all claims between the employer and employee be subject to arbitration. There were a few exceptions identified for workers’ compensation and unemployment claims, but not for National Labor Relations Act (NLRA) claims processed through the NLRB.

The Board stated that although the arbitration agreement did not expressly state that NLRB claims are subject to the arbitration agreement, because it called for “all claims” to be arbitrated, with limited exceptions, it restricted employees’ access to the NLRB and its processes. The Board ordered the employer to rescind the unlawful agreement and provide notice to current and former employees.

Employers should ensure that arbitration agreements expressly exclude NLRB claims. A general disclaimer excluding anything that would interfere with employee rights may not be sufficient.

Action Items

  1. Have arbitration agreements reviewed with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

NLRB Clarifies Restrictions on Social Media Use, Confidentiality, and Employee Conduct

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All Employers subject to the NLRA

EFFECTIVE

August 30, 2018

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On June 14, 2019, the National Labor Relations Board (NLRB) released an Advice Memorandum in Coastal Industries, Inc. dba Coastal Shower Doors issued on August 30, 2018. The Board applied the 3-tiered Boeing standard to several employer policies. Specifically, Category 1 policies are lawful; Category 2 policies require individual scrutiny; and Category 3 policies are unlawful. The following is a summary of key portions of the NLRB’s review of confidentiality, conduct, and social media policies.

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Union Organizers Can No Longer Use the Public Spaces of an Employer’s Premises

APPLIES TO

All Employers subject to the NLRA

EFFECTIVE

June 14, 2019

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In UPMC, the National Labor Relations Board (NLRB) eliminated the “public space” rule that allowed nonemployee union representatives to use the public areas of the property for organizing activities. However, public spaces may be used if the union has no other reasonable way of communicating with employees or the employer allows similar groups access to its public spaces.

There, union organizers met with employees in the employer’s public cafeteria and displayed union paraphernalia. Following a confrontation, police escorted the representatives from the property. The employer equally expelled other nonemployee individuals soliciting for any number of reasons.

Moving forward, employers may maintain no-solicitation policies, provided that unions have other ways of communicating with employees and the policy is consistently enforced. Employers should implement standard procedures for enforcing no-solicitation policies to ensure consistent treatment of nonemployees.

Action Items

  1. Have no-solicitation policies for public areas reviewed for consistency with this ruling.
  2. Have applicable staff trained on approved uses of employer public spaces for consistent application of the policy.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

DOL Issues Opinion Letters on Nondiscretionary Bonuses, Overtime Exemption Standards, and Rounding Time Under the FLSA

APPLIES TO

All Employers Subject to the FLSA

EFFECTIVE

July 1, 2019

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The U.S. Department of Labor (DOL) recently announced new opinion letters from the Department’s Wage and Hour Division (WHD) on calculating overtime pay for nondiscretionary bonuses and permissible rounding practices under the Fair Labor Standards Act (FLSA).  Opinion letters are responses from the WHD to submitted queries, are primarily informative in nature, and are published by the WHD to clarify or interpret existing regulations.

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OSHA Issues Final Rule on Regulatory Safety Updates

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All Employers

EFFECTIVE

July 15, 2019

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(888) 378-2456

The Occupational Safety and Health Administration (OSHA) recently issued a final rule to clarify and streamline certain safety standards. For example, it is a set rule that employers must report hearing loss injuries to OSHA if they are work-related. However, determining work-relatedness has been unclear. Now, healthcare providers must follow OSHA’s general standards for determining whether injuries are work-related, as set forth in 29 C.F.R. § 1904.5, when making a determination related to hearing loss.

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Sixth Circuit: Work Restrictions Do Not Equate to a Disability Under the ADA

APPLIES TO

All Employers with MI, KY, OH, and TN Employees

EFFECTIVE

June 7, 2019

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(888) 378-2456

In Booth v. Nissan North America, Inc., the Sixth Circuit stated that just because an employee has physical work restrictions does not equate to being “disabled” under the Americans with Disabilities Act (ADA). A person is disabled under the ADA if they have a (1) “physical or mental impairment that substantially limits one or more major life activities,” (2) “a record of such impairment,” or (3) is “regarded as having such an impairment.”

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Seventh Circuit: Obesity is a Disability Under the ADA Under Limited Circumstances

APPLIES TO

All Employers with IL, IN, and WI Employees

EFFECTIVE

June 12, 2019

QUESTIONS?

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(888) 378-2456

In Richardson v. Chicago Transit Authority, the Seventh Circuit Court of Appeal stated that obesity would only be considered a disability under the Americans with Disability Act (ADA) if the obesity is caused by a physiological disorder or condition.  This decision aligns the Seventh Circuit with the Second, Sixth, and Eighth Circuit courts.

Generally, employers covered by the ADA are required to provide disabled employees with reasonable accommodations that will allow the disabled person to perform the essential function of their job.  Richardson provides employers with guidance on how the ADA applies to obesity.  If an obese individual’s condition prevents them from performing essential job duties, or threatens the safety of others, employers may still need to engage in the interactive process to determine if the individual’s condition qualifies under the ADA or other state or local laws.

Action Items

  1. Review interactive process procedures for consistency with this ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

Alabama: New Pay Equity Law Prohibits Retaliation Related to Wage History Inquiries; Adds Equal Pay Provisions

APPLIES TO

All Employers with AL Employees

EFFECTIVE

September 1, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

The newly enacted Clarke-Figures Equal Pay Act (CFEPA) is Alabama’s first statewide pay equity law, and goes into effect on September 1, 2019.  The CFEPA takes its cues from the federal Equal Pay Act, but also includes provisions commonly seen in other state-level pay equity laws designed to combat discriminatory pay practices.

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California: Paid Family Leave Extended in 2020

APPLIES TO

All Employers with CA Employees

EFFECTIVE

June 27, 2019, July 1, 2020, and January 1, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

SB 83 was recently enacted to extend Paid Family Leave (PFL) benefits from a maximum of six to eight weeks beginning on July 1, 2020. PFL benefits are used by employees to care for an ill family member or bond with a child. Beginning January 1, 2021, the bill adds benefit coverage for employees participating in a qualifying exigency related to the covered active duty of a qualified family member in the U.S. Armed Forces.

The bill also requires the governor to propose other PFL benefit increases by November 2019. This would include extending coverage up to three months for each parent to take consecutively for baby bonding, increasing the benefit rate up to 90% for low-wage workers, and implementing job protections. Employers should continue to look for ongoing updates on these changes.

Action Items

  1. Review SB 83 here.
  2. Prepare to update employee handbooks and policies where applicable.
  3. Update PFL pamphlets when released by the state.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

Connecticut: New Bill Implements Expansive, Fully Paid Family Leave Benefits

APPLIES TO

All Employers with CT Employees

EFFECTIVE

June 25, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

On June 25, 2019, Governor Ned Lamont signed Public Act 19-25, “An Act Concerning Paid Family and Medical Leave” (the Act) into law, setting the wheels in motion for the most generous paid family and medical leave benefit in the United States.  The Act substantially amends the existing Connecticut Family and Medical Leave Act (CTFMLA), expanding coverage to all employees, reducing the waiting period for eligibility, and requiring compensation of employees on leave.

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