Hunton Employment & Labor Perspectives

In a ceremonial signing on June 22, Philadelphia Mayor Jim Kenney signed a new municipal bill giving the City of Philadelphia authority to temporarily close businesses found to have repeatedly violated the City’s anti-discrimination statutes.  The new bill, which amends the City’s Fair Practices Ordinance, states that the Philadelphia Commission on Human Relations may, “upon a finding that [an employer] has engaged in severe or repeated violations without effective efforts to remediate the violations, order that the [employer] cease its business operations in the City for a specified period of time.” The bill, which went into effect immediately, does not state how long a business may be closed.  Nor does it define “severe or repeated violations” or clarify what constitutes “effective efforts to remediate.”

On June 12, 2017, the Office of Labor Management Standards of the Department of Labor (DOL) published a Notice of Proposed Rulemaking that proposes to rescind the controversial “persuader rule” implemented by the DOL under the Obama administration. This rule sought to require disclosure of advice to employers from consultants and attorneys who engage in activities designed to persuade employees not to unionize. This announcement is on the heels of the DOL’s June 7, 2017, press release withdrawing two administrative interpretations issued by the DOL under the Obama administration concerning misclassification of independent contractors and joint employment, as discussed in a previous post. The recent flurry of activity by the DOL indicates that the Trump administration is following through with its promise to loosen many of the onerous restrictions placed on employers by the DOL in the Obama-era.

On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace. Despite the enactment of the ADEA a half-century ago, the participants cited various statistics demonstrating the difficulty still facing older individuals in the workplace. This discrimination faced by older workers in an aging-American workforce coupled with various statements by Chairman Lipnic regarding the ADEA are signals to employers that ADEA enforcement may receive an increased focus during the Trump administration.  In a previous post, we discussed the impact of Chairman Lipnic’s appointment and the direction of the EEOC under her new leadership and highlighted that ADEA enforcement would be one of the agency’s main focuses.

With an eye towards “increasingly unaffordable” higher education, President Trump signed an Executive Order on June 15, 2017, seeking to “provide more affordable pathways to secure, high paying jobs by promoting apprenticeships and effective workforce development programs, while easing the regulatory burden on such programs and reducing or eliminating taxpayer support for ineffective workforce development programs.” The Executive Order directs the Department of Labor (“DOL”) to propose regulations that “promote the development of apprenticeship programs by third parties,” including trade and industry groups, companies, non-profit organizations, unions, and joint labor-management organizations. The term “apprenticeship” means “an arrangement that includes a paid-work component and an educational or instructional component, wherein an individual obtains workplace-relevant knowledge and skills.”  The Executive Order, in effect, seeks to expand the authority of employers and other third parties to design their own apprenticeship programs and tasks the DOL with implementing or rejecting and assessing such programs on an expedited basis.

President Trump nominated attorney Marvin Kaplan to fill one of two vacancies on the National Labor Relations Board on June 19, 2017.  Kaplan currently works on the Occupational Safety and Health Review Commission and previously served as Republican counsel to the House Education and Workforce Committee which, among other things, provides oversight of the NLRB.  The five-seat NLRB currently consists of only three members: Chairman Philip Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D).  With members appointed (subject to Senate approval) to 5-year terms, the NLRB is typically composed of three members of the sitting President’s party and two from the other party.  If Kaplan’s appointment is approved, it could clear the way for President Trump to appoint a third Republican, giving the NLRB its first Republican majority since 2008.

Two recent rulings have labor law observers questioning where the line is in disciplining employees for making offensive or obscene comments toward their employer. Seemingly at odds are a recent Second Circuit ruling finding such behavior is protected activity under the NLRA and a recent NLRB ruling finding the use of profanity towards management is not protected.

On May 24, 2017, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fl.) each introduced the Representation Fairness Restoration Act in their respective Houses of Congress in an attempt to reverse the controversial 2011 ruling by the National Labor Relations Board in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. (2011). As has been discussed in previous posts, the Board in Specialty Healthcare announced a new standard for determining the appropriateness of a bargaining unit. Under the new standard, unless an employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other portion of the workforce, the requested bargaining unit will be approved. This new standard has encouraged the formation of smaller “micro-bargaining units.” These micro-bargaining units have been an administrative and managerial headache for employers, requiring them to bargain with multiple small units in the same workplace, and sometimes in the same department.

One of the most controversial regulatory actions from the US Department of Labor during the Obama administration was the DOL’s regulation significantly increasing the salary level under the Fair Labor Standards Act’s white-collar exemptions.  The regulation sought to more than double the current salary requirement of $23,660 per year, and it included an automatic updating requirement that would have accelerated future salary level increases at a rate well above the rate of inflation.

It should come as no surprise that California, known for regulating work, also regulates rest.  Section 551 of the California Labor Code states that, subject to certain exceptions, all employees are entitled to “one day’s rest” from labor “in seven” and Section 552 states that employers shall not “cause [] employees to work more than six days in seven.”  The Ninth Circuit Court of Appeals asked the California Supreme Court in Mendoza v. Nordstrom, Inc. these three specific questions:

In a press release issued this morning, the Department of Labor has announced that it is withdrawing two administrative interpretations issued by the Department of Labor under the Obama administration in 2015 and 2016 relating to misclassification of independent contractors and joint employment. These two administrative interpretations sought to expand the definition of employee, thereby increasing the possibility of misclassification cases, and, as some argued, expanding the concept of joint employer under the Fair Labor Standards Act.  While this is a welcomed ...