Supreme Court Confirms Stricter Test for Granting Injunctions Under the NLRA

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June 13, 2024

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  • Section 10(j) injunctive relief under the NLRA requires a requesting party to establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tip in their favor; and (4) an injunction is in the public interest.

Discussion

In Starbucks v. McKinney, the U.S. Supreme Court published an opinion resolving the issue among federal courts regarding how requests for injunctive relief under Section 10(j) of the National Labor Relations Act (NLRA) should be evaluated. The Supreme Court confirmed that lower courts must follow the traditional, more stringent test when reviewing such requests from the National Labor Relations Board (NLRB), which requires a requesting party to establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tip in their favor; and (4) an injunction is in the public interest.

 

Section 10(j) of the NLRA authorizes the NLRB to seek temporary injunctions against employers and unions in federal district courts to stop unfair labor practices while the case is being litigated before administrative law judges and the Board. In recent years, the NLRB’s General Counsel has pushed NLRB field offices to utilize the Section 10(j) injunction remedy more frequently. Circuit courts have been split on which test should apply when granting Section 10(j) injunctive relief – the stricter four-part test or a more lenient two-part test. Under the two-part test, a requesting party is required only to show that there is reasonable cause to believe that unfair labor practices have occurred and that injunctive relief is proper.

 

In resolving the Circuit split, the Supreme Court noted “there is an obvious difference between having the Board show that it is ‘likely’ to succeed on the merits and having it show only that its theory of the case is ‘substantial and not frivolous,’ without having to convince the court that its theory is likely meritorious….” Based on the statutory context of the NLRA, the Supreme Court concluded that the stricter four-part test is appropriate when determining whether to grant extraordinary relief like a temporary injunction.

 

Action Items

  1. Continue to evaluate work policies and practices for compliance with the NLRA.
  2. Consult with legal counsel regarding any unfair labor practice allegations.

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. © 2024 ManagEase

New Prevailing Wage Data Source for Hiring Foreign Labor

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All Employers with Foreign Labor

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July 1, 2024

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  • The Foreign Labor Certification Data Center (FLC) website is discontinued.
  • Replacing the FLC Data Center is the Foreign Labor Application Gateway (FLAG).

Discussion

Effective July 1, 2024, the Foreign Labor Certification Data Center (FLC) website is discontinued. Employers previously used the FLC Data Center for prevailing wage information required for permanent and temporary foreign labor certification and non-immigrant temporary work visas. Replacing the FLC Data Center is the Foreign Labor Application Gateway (FLAG). The prevailing wage information is found under the “Wage Data” tab.

 

There are no major updates to the information provided on the FLAG website aside from a more user-friendly interface. Employers can still conduct wage searches and download current and historical wage data files based on geographic and occupational information. Data is also broken down into H-2A Adverse Effect Wage Rates (AEWRs), H-2A Labor Supply State Determinations, and H-2A Meals & H-2A and H-2B Subsistence Rates. Employers should review the new website to familiarize themselves with obtaining required data for Department of Labor compliance.

 

Action Items

  1. Review the FLAG website here.
  2. Train appropriate personnel on the requirements.

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. © 2024 ManagEase

NLRB Issues New Fair Choice Final Rule

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 September 30, 2024

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  • The National Labor Relations Board (NLRB) issued its “Fair Choice-Employee Voice” Final Rule impacting union representation procedures for blocking charges, the voluntary recognition bar, and the construction industry’s collective bargaining relationships.

Discussion

The National Labor Relations Board (NLRB) has issued its “Fair Choice-Employee Voice” Final Rule impacting union representation procedures for blocking charges, the voluntary recognition bar, and the construction industry’s collective bargaining relationships. The Final Rule was published in the Federal Register on August 1, 2024, and will go into effect on September 30, 2024.

 

Blocking Charges. Under the Final Rule, if a party to an election files an unfair labor practice charge while an election petition is pending, an NLRB regional director may delay the election if the regional director finds that the alleged conduct, if proven, would interfere with employee free choice. Previously, if a party to an election (typically, a labor organization) filed an unfair labor practice charge while an election was pending, the election was held as scheduled, irrespective of a pending charge.

 

Voluntary Recognition. The Final Rule also reinstates the pre-April 2020 NLRB policy, lengthening the window within which employees and competing unions could file an election petition challenging a voluntary recognition to a “reasonable period” following recognition. The Board defines a reasonable period as at least six months from the parties’ first bargaining session. That window can extend to no more than one year from the parties’ first bargaining session. Under the prior April 2020 rule, the window was limited to a 45-day period following recognition.

 

Construction Industry. The Final Rule also returns to the pre-April 2020 NLRB policy on employer recognition of unions in the construction industry. Specifically, the Final Rule dispenses the requirement of majority employee support and reinstates the possibility of binding recognition through collective bargaining agreement language. It also reimposes a six-month limitations period for challenging the employer’s recognition, thereby restraining employees’ ability to conduct an election or challenge union representation, even with a majority vote, based on the contractual recognition language.

 

In light of the recent Supreme Court decision to overturn Chevron deference, this Final Rule will likely face litigation challenges and it is unclear how courts will interpret the NLRB’s authority. However, in the interim, employers should be prepared for the outlined changes until a final decision is made.

 

Action Items

  1. Review Board election procedures and union representation proceedings with legal counsel for compliance.

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. © 2024 ManagEase

Ninth Circuit: FLSA De Minimis Rule Preserved

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All Employers with Employees in AK, AZ, CA, HI, ID, MT, NV. OR, WA, Guam, and Northern Mariana Islands

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July 10, 2024

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  • The de minimis rule remains enforceable in the context of overtime wages under the Fair Labor Standards Act (FLSA).

Discussion

In Cadena v. Customer Connexx LLC, the Ninth Circuit Court of Appeals said that the de minimis rule is still enforceable in the context of overtime wages under the Fair Labor Standards Act (FLSA). The de minimis rule allows employers to forego paying employees for short, uncertain and indefinite periods of time that are irregularly worked off the clock.

 

In 2022, in this same case, the Ninth Circuit said that the time a call center employee spends booting up a computer is integral and indispensable to their work and therefore may be compensable. Upon return to the trial court from the initial ruling, the trial court said that even if booting up the computer was integral and indispensable to work, the time spent was de minimis and not compensable. The employees challenged the de minimis rule because it is not codified in the FLSA and the U.S. Supreme Court previously said the de minimis rule was not valid in the context of donning and doffing work clothing or equipment.

 

Here, the Ninth Circuit distinguished the Supreme Court’s prior ruling on donning and doffing as being based on a different FLSA section (§ 203(o)) than the overtime provisions (§ 207) at issue here. Additionally, the de minimis rule has never been found to be generally invalid under the FLSA. That being said, the court questioned whether the workers booted up and logged off every shift, making it so regular that the de minimis rule would not apply, and whether another timekeeping method would adequately record time worked, including while booting up and logging off their computers. Ultimately, the case was remanded back to the trial court to determine the answers to these questions.

 

Action Items

  1. Review timekeeping practices to ensure that worked time is appropriately captured.

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. © 2024 ManagEase

California: PAGA Reforms Look to Improve Fairness, Limit Frivolous Lawsuits

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July 1, 2024

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  • AB 2288 and SB 92 bring significant reforms to PAGA to give employers the opportunity to reduce potential penalties and cure alleged violations.

Discussion

AB 2288 and SB 92 bring significant reforms to the California Private Attorneys General Act (PAGA). PAGA allows citizens to enforce state wage and hour laws on behalf of the Labor Commissioner. The changes are meant to create more fairness in the process for small businesses and encourage them to follow wage and hour laws, as well as “limit the frivolous litigation that has cost employers billions without benefiting workers.”

 

The bills limit PAGA penalties (1) if the employer has taken “all reasonable steps” to be in compliance before receiving a PAGA notice or request for records, and (2) if within 60 days after receiving a PAGA notice, the employer has taken all reasonable steps to prospectively be in compliance with all provisions identified in the notice. The penalty limitation for (2) only applies if the employer was not found to have unlawful policies or practices in the previous five years that gave rise to the alleged violations, and the conduct at issue was not malicious, fraudulent, or oppressive. Additionally, an employer who satisfies (1) or (2) above and cures a violation is not liable for civil penalties.

 

“All reasonable steps” includes, but is not limited to, conducting periodic payroll audits and taking action in response to the results, disseminating lawful written policies, training supervisors on applicable wage and hour compliance, or taking appropriate corrective action with regard to supervisors. Whether the employer’s conduct was reasonable will be evaluated by the totality of the circumstances and take into consideration the size and resources available to the employer, and the nature, severity and duration of the alleged violations. Notably, the existence of a violation, despite the reasonable steps taken, is insufficient to establish that an employer failed to take all reasonable steps.

 

A number of other reforms were implemented. For example, PAGA plaintiffs must have personally experienced the alleged Labor Code violations. Alleged violations must have occurred within the one-year statute of limitations period. The bills eliminate “stacking” of civil penalties for violations of Labor Code sections 201-204, and 226, which derive from other Labor Code violations. Employers also have the opportunity to cure alleged failure to pay wages, break premiums, or expense reimbursements if certain requirements are met. The new rules apply to lawsuits filed on or after June 19, 2024.

 

Action Items

  1. Review AB 2288 and SB 92.
  2. Conduct periodic payroll audits and taking action in response to the results.
  3. Distribute written policies to employees and obtain written acknowledgment thereof.
  4. Training supervisors on applicable wage and hour compliance.
  5. Review PAGA claims with legal counsel for compliance.

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. © 2024 ManagEase

California: Indoor Heat Illness Standard Effective Immediately!

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Employers with Indoor Employees in CA

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July 23, 2024

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  • Cal/OSHA’s Indoor Heat Illness Prevention rule requires employers to implement a written prevention plan.
  • Employers must implement heat prevention measures beginning at indoor temperatures of 82°F and must train employees on heat illness prevention.

Discussion

Cal/OSHA’s Heat Illness Prevention in Indoor Places of Employment regulation applies to all indoor workplaces where the indoor temperature is 82°F or higher, such as restaurants, warehouses, and manufacturing facilities. The regulations do not apply to employees working remotely, certain emergency operations, correctional facilities, or to incidental exposure to heat where an employee is exposed to temperatures from 82°F to below 95°F for less than 15 minutes in any 60-minute period. Employers must have a written indoor heat illness prevention plan, which can be incorporated into an existing Injury and Illness Prevention Plan (IIPP) or Heat Illness Prevention Plan (HIPP). The Plan must be in English and must also be available at the worksite in a language understood by the majority of employees.

 

For indoor workplaces where the temperature reaches 82°F, employers must take steps to protect workers from heat illness, such as by providing water, rest, and cool-down areas. When the indoor temperature reaches 87°F, employers must also implement administrative controls, such as acclimatizing employees, rotating employees, scheduling work earlier or later in the day, using work/rest schedules, reducing work intensity or speed, reducing work hours, changing required work clothing, and using relief workers. Employers must also implement engineering controls, such as isolation of hot processes, isolation of employees from sources of heat, air conditioning, cooling fans, swamp coolers, local exhaust ventilation, shielding from a radiant heat source, and insulation of hot surfaces. If engineering controls are insufficient to reduce temperatures, personal heat-protective equipment must be used to minimize the risk of heat illness.  If workers wear clothing that restricts heat removal or work in high radiant heat areas, these additional requirements apply at 82°F.

 

When the indoor temperature is at least 87°F or 82°F with restrictive clothing, employers are required to measure the temperature and heat index to record the greater number. Employers must keep measurement records, including the date, time, and exact location of measurement. Instruments used to measure the temperature or heat index must be used and maintained according to the manufacturers’ recommendations.

 

Employers are required to train all employees before the start of any work that may reasonably expose them to risk of heat illness. Employers are required to implement emergency response procedures, which includes effective communication measures to contact emergency medical services; responding to signs and symptoms of potential heat illness; contacting emergency medical services; and providing clear and precise directions to the worksite. Employers may be covered under both the indoor and outdoor regulations if they have both indoor and outdoor workplaces. Also note that the new rules protect employees from discrimination and termination for exercising their rights or offering occupational safety and health protection to employees.

 

Action Items

  1. Review the final regulations here.
  2. Review the Comparison Chart of Indoor and Outdoor Heat Illness Prevention Standards.
  3. Review the Cal/OSHA Heat Illness Prevention web pageand the org informational website, as well as a Heat Illness Prevention online tool.
  4. Implement an indoor heat illness prevention plan.
  5. Ensure heat illness prevention measures are implemented.
  6. Have all employees trained on heat illness prevention.

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. © 2024 ManagEase

California: One Racial Slur May be Severe Enough to Constitute Harassment

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July 29, 2024

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  • A one-time use of the “N-word” may be sufficient to constitute a claim of harassment.
  • Preventing an employee from pursuing their harassment claim may qualify as retaliation.

Discussion

In Bailey v. San Francisco District Attorney’s Office, the California Supreme Court said that the one-time use of a racial slur may be sufficient to claim harassment under the Fair Employment and Housing Act (FEHA). There, an African-American employee alleged that a coworker called her the “N-word.”  After she reported this incident, the human resources manager intentionally failed to file the complaint as required and allegedly engaged in intimidating conduct.

 

The Court said that an isolated act of harassment may cause a claim if it is sufficiently severe in light of the totality of the circumstances. Allegations of a racially hostile workplace must be viewed “from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” Here, a coworker’s use of an unambiguous racial epithet, such as the N-word, may be sufficient to cause a harassment claim. The court considered the closeness in physical proximity in which the plaintiff and co-worker worked, as well as the co-worker’s potential relationship with the personnel officer, as factors in the overall circumstances under which the slur occurred.

 

Additionally, intentional action taken by a co-worker to remove an employee’s means of reporting and addressing racial harassment in the workplace may be the basis of a retaliation claim. Retaliatory acts may take the form of “a series of subtle, yet damaging, injuries;” each act is not required to separately constitute an adverse employment action in and of itself. The Court clarified that its opinion does not say that an employer’s mere inaction (e.g., the failure to investigate a claim of racial harassment or take corrective action) — which separately may bear on the employer’s liability for the harassment itself — constitutes an act of retaliation.

 

Action Items

  1. Implement clear harassment and retaliation reporting procedures.
  2. Strictly enforce harassment prevention policies.
  3. Have all personnel trained on harassment prevention.

 

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. © 2024 ManagEase

Colorado: Legislative Updates

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As Indicated

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  • New Colorado statutes and amendments add protections for delivery network company drivers, add new protected classifications, amend the state’s distracted driving law, and lower the threshold for qualifying as a small employer for health benefits purposes.

Discussion

The 2024 Colorado legislative session has concluded and resulted in several new laws affecting Colorado employers. Key pieces of legislation are summarized below.

 

Delivery Network Drivers. HB 24-1129 creates an entirely new statute, C.R.S. § 8-4-126, that focuses on job-related protections for delivery drivers who work for delivery-network companies (DNC), including wage transparency, contract transparency, and account-deactivation transparency and challenge procedures. The new law also includes enforcement mechanisms. Under the law, DNCs include “any person that sells the delivery of goods or services, including delivery provided as part of the sale of goods, in the state and that engages or dispatches delivery drivers through a digital platform.”

 

Beginning on January 1, 2025, the bill requires a DNC to provide various disclosures to its drivers and to consumers of the DNC. The disclosures include payments that a consumer makes to the DNC, the amount that the DNC then pays to a driver, and the distances traveled to complete a delivery task. A DNC is prohibited from decreasing the amount the DNC pays a driver for a delivery task based on the amount of a consumer’s tip for that delivery task, and a DNC must pay the driver all tips paid by the consumer.

 

The bill specifies how a DNC may deactivate a driver from the DNC’s digital platform, including: (1) requiring that a DNC disclose specified information about the DNC’s deactivation policy and any revisions to the policy to drivers; and (2) creating internal account deactivation challenge procedures by which a driver may challenge the driver’s deactivation and take steps, if any, to remedy a violation and become reinstated on the DNC’s digital platform.

 

The bill also creates transparency in contracting between DNCs and delivery drivers; namely, new requirements are intended to make contracts easier for delivery drivers to read and understand, and more accessible to delivery drivers before and after the contract is enforceable, or after any changes or amendments to the contract.

 

Finally, the bill outlines various enforcement mechanisms and penalties if a DNC violates any section of it, including statutory damages and fines on a per-driver or per-consumer basis, and injunctive relief. The Colorado Division of Labor Standards is required to adopt rules necessary to implement the requirements of the new law.

 

Expanded Protected Classifications.

  • Effective June 3, 2024, HB 24-1132 creates a new private right of action that prohibits an employer from intimidating, threatening, coercing, discriminating, or retaliating against, or taking any adverse action against an employee who is or becomes a living organ donor. The bill creates a rebuttable presumption that an employer has engaged in any of the prohibited actions if the action is taken against an employee during the period that begins 30 days before the organ donor operation and ends 90 days after the operation. Employers may overcome the presumption by clear and convincing evidence that they engaged in the prohibited act for a lawful reason. Employees who allege a violation of their rights may be entitled to back pay, reinstatement, wage repayment, monetary penalties, injunctive relief, and attorneys’ fees, and costs.
  • Effective June 3, 2024, HB 24-1451 amends Colorado’s existing antidiscrimination law, adding hair length as a characteristic commonly or historically associated with race as part of Colorado’s CROWN protections. Hair length joins hair texture, hair type, and protective hairstyles commonly associated with race, such as braids, locs, twists, tight coils or curls, cornrows, bantu knots, and headwraps.

 

Civil Protection Orders for Threats of Workplace Violence. Effective January 1, 2025, HB 24-1122 expands the safeguards related to civil protection orders and temporary restraining orders. The bill clarifies that a business may obtain a civil protection order in Colorado by showing that “a risk or threat of physical harm or the threat of psychological or emotional harm exists.” The bill further states that a court can grant a protective order “regardless of when an incident occurred,” which replaces the previous standard that a petitioner had to prove “imminent danger.” In the employment context, when an employee or former employee makes a threat of violence, a civil protection order may be used to protect an employer’s personnel and property.

 

Distracted Driving Law. Effective January 1, 2025, SB 65 amends Colorado’s distracted driving law to permit the use of a mobile electronic device while driving if the driver uses a hands-free accessory to access the device’s features.

 

Health Benefits Coverage. Effective January 1, 2025, SB 24-73 amended several statutes to reflect that employers must employ no more than 50 employees (down from the pre-amendment ceiling of 100) to qualify as a small employer for health-insurance purposes.

 

Action Items

  1. DNC employers should review and revise policies and procedures for compliance with new legal requirements.
  2. Update existing anti-discrimination and anti-harassment policies to include expanded protected classifications.
  3. Review and revise work-related policies concerning distracted driving.
  4. Consult with legal counsel regarding health benefits coverage under amended definitions of “small employer.”
  5. Consult with legal counsel regarding remedies for current or former employees’ threats of violence.

 

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. © 2024 ManagEase

Chicago, IL: First Steps Towards Phasing Out Tip Credits

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Employers with Tipped Employees in Chicago, IL

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July 1, 2024

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  • Effective July 1, 2024, Chicago takes its first step towards phasing out the subminimum wage tip credit which is set to eliminate entirely by July 1, 2028.

Discussion

On October 6, 2023, the Chicago City Council voted to eliminate the subminimum wage for tipped employees working in Chicago by 2028, entitled the “One Fair Wage” ordinance. The Ordinance covers employees working within the geographical boundaries of Chicago, regardless of their immigration status or the location of their employer. As of July 1, 2024, the minimum wage in Chicago is $16.20 and the minimum cash wage is $11.02. Effective July 1, 2024, Chicago also takes its first step towards phasing out the subminimum wage tip credit. The minimum cash wage paid to tipped employees will continue to increase year over year as the tip credit is decreased, as follows:

 

  • July 1, 2024 – 32% of applicable minimum wage;
  • July 1, 2025 – 24% of applicable minimum wage;
  • July 1, 2026 – 16% of applicable minimum wage;
  • July 1, 2027 – 8% of applicable minimum wage;
  • July 1, 2028 – 0% of applicable minimum wage;

 

By July 1, 2028, the standard minimum wage rate will apply to all employees, including those in occupations that customarily receive tips. Those employees will still be entitled to earn and retain their tips in addition to the standard minimum wage. Under the Ordinance, Chicago’s tipped employees have the right to file complaints with the Office of Labor Standards.

 

Action Items

  1. Update payroll practices for compliance with applicable tip credit allowance.

 

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. © 2024 ManagEase

Louisiana: Commissions and Bonuses Part of Final Pay

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August 1, 2024

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  • Commissions, incentive pay, and bonuses are a part of final wages due if they were earned at the time of separation and were not modified due to a written policy which addressed such payments.

Discussion

Effective August 1, 2024, HB 352 requires commissions, incentive pay, and bonuses to be a part of final wages due if they were earned at the time of separation and were not modified due to a written policy which addressed such payments. The bill also outlines the components of lawful policies which can modify what is due at the time of separation:

 

  • A policy providing for adjustments to the amount based on changes to the order generating a commission which affects the amount of the commission;
  • A policy providing that a payment to the laborer or employee is not earned unless and until the employer has received the payment which generates the commission, incentive pay, or bonus; or
  • In the case of a bonus, the amount of which is determined by financial information reflecting the employee’s or employer’s performance on an annual, quarterly, or other periodic basis, a reasonable amount of time, not to exceed one hundred twenty calendar days from the end of such periodic basis, shall be allowed based on standard accounting practices used by the employer to make the determination as to whether a bonus is due and the amount thereof.

 

Employers who do not have policies in place for the payment of commissions, incentive pay, or bonuses or need to update them may wish to consult with legal counsel to make sure the policies are drafted in accordance with the law’s requirements.

 

Action Items

  1. Review the bill here.
  2. Review and update policies for commissions, incentive pay, or bonuses according to the requirements.
  3. Have appropriate personnel trained on the requirements.

 

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. © 2024 ManagEase