NLRB Overrules Browning-Ferris Industries, Reinstates Prior Joint-Employer Standard

Today in a 3-2 decision, the National Labor Relations Board overruled its 2015 decision in Browning-Ferris Industries. The decision means a return to the pre–Browning Ferris standard for joint-employer liability. Under this standard,  two or more entities will be deemed joint employers under the NLRA if there is proof one entity has “exercised control over essential employment terms of another entity’s employees . . .  and has done so directly and immediately . .in a manner that is not limited and routine.”  Read the full decision and the Board’s press release here.

Today’s News & Commentary — July 11, 2017

As reported by the New York Times, the Trump administration (the Department of Homeland Security) announced that it would delay, and likely forgo altogether, implementing a federal rule which would have allowed foreign entrepreneurs to come to/stay in the United States to start companies.  According to the announcement, the International Entrepreneur Rule was delayed in order to “provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule.”  The announcement was not well-received by many business leaders.  The president of the National Venture Capital Association (NVCA) called the announcement “disappointing,” and described it as “represent[ing] a fundamental misunderstanding of the critical role immigrant entrepreneurs play in growing the next generation of American companies.”

As we mentioned last week, on July 5, 2017, Washington State’s Governor, Jay Inslee, signed SSB 5975 into law.  The law guarantees paid family and medical leave, providing benefits of up to 90% of the employee’s income (matching D.C. in providing the highest percentage of income benefits of any state or district).  Under the law, employees who have worked at least 820 hours in the past year will be eligible for up to 12 weeks of paid family leave to care for a new child or sick family member.  Employees will also be entitled to up to 12 weeks of paid leave to manage their own serious health issues.  Employees will be able to, under certain circumstances, combine family and medical leave to receive up to 16 weeks of paid leave.  Finally, employees who experience pregnancy-related complications will be able to receive up to 18 weeks of paid leave.  Washington’s program, which will take effect in 2020, will be funded by both employers and employees.  Upon enacting this law, Washington became the fifth state to enact a state paid family and medical leave act.  D.C. has also adopted a paid leave program in its jurisdiction.  OnLabor has covered similar state enactments in the past (see here and here).

Today, oral argument takes place in Amanda Frlekin et al v. Apple.  The case is on appeal to the Ninth Circuit.  In this class action, plaintiff-employees argue that they should be paid for the time they spend at the end of their shifts undergoing anti-theft bag searches.  The employees lost below—U.S. District Judge William Alsup (in the U.S. District Court for Northern California, San Francisco) rested his ruling in part on the fact that employees could choose not to bring a bag to work, and thus obviate the delay of a bag search.  In a similar case, Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), SCOTUS held that bag checks were not compensable activity because they were not an “integral and indispensable” part of the employees’ job responsibilities.  However, in Miranda v. Coach, Inc., 2015 WL 1788955 (N.D. Cal. 2015), the court held that Busk did not apply to California labor law.  Thus in Frlekin, the favorable outcome to Apple was based on the judge’s finding that employees were not “suffered or permitted” to work during bag checks.

The New York Times profiled economist Michael Mandel’s (Progressive Policy Institute) view that the rise of e-commerce is creating net jobs.  That is, that as e-commerce surpasses brick-and-mortar retail in the economic landscape, it is creating more jobs than it is displacing.  What’s more, Mandel’s “unorthodox” position asserts that these new jobs are higher-paying than traditional retail jobs.  As the profile points out, other economists are skeptical of Mandel’s position.  At the very least, the tension captures the existing anxieties, which we’ve previously covered, about the future of jobs as automation and other labor-saving technologies become increasingly prevalent.

Weekend News & Commentary — July 1-2, 2017

This week, the Department of Labor expressed its intention to change its impending overtime rule.  The Labor Department filed a response brief in a Fifth Circuit case involving a challenge to the Obama administration’s overtime rule.  The rule, which was intended to go into effect last December, increased the salary threshold under which workers would receive time-and-a-half pay for work exceeding 40 hours per week to $47,467.  A month before the rule was supposed to take effect, a federal judge in Texas issued an injunction, enjoining the rule in State of Nevada v. United States Dep’t of Labor.  The Obama administration appealed, and the Trump administration elected to continue the challenge.  However, the government’s reply brief makes it clear that the Labor Department intends to revise the pending rule.  Instead of defending the salary threshold established by the rule, the Department of Labor is asking the Fifth Circuit to affirm the Department of Labor’s authority to set threshold salaries for overtime pay, which the lower court opinion called into question.

Last week, the Second Circuit enforced a National Labor Relations Board order finding that an employee’s Facebook post was protected by the National Labor Relations Act in NLRB v. Pier Sixty, LLC.  The employee was fired after his employers discovered the post, which included profanity-laced comments about the employee’s supervisor.  The employee subsequently filed a ULP complaint with the NLRB.  An Administrative Law Judge found that the employee’s comments were protected concerted activity under Section 7 of the NLRA.  The Second Circuit concluded that although the comments were at the outer bounds of protected activity, they were nonetheless protected because they encouraged employees to vote for the union in an upcoming election.  In reaching its decision, the Court considered the fact that the post was made two days before a union election and brought up workplace concerns.  The Court also considered the fact that Pier Sixty had not fired or disciplined other employees for similar behavior in the past.  Lastly, the Court considered the method the employee used to communicate, noting that social media is a popular forum for communicating and organizing among workers.

The Second Circuit also denied a plaintiff’s request to review Christiansen v. Omnicom Group, Inc. en banc.  In Christensen, the plaintiff argued that Title VII prohibits discrimination on the basis of sexual orientation.  Relying on circuit precedent establishing that sexual orientation-based discrimination is not sex discrimination under Title VII, a three-judge panel dismissed the plaintiff’s sexual orientation discrimination claim.  The Second Circuit’s denial does not mean it is unwilling to revisit the possibility that discrimination on the basis of sexual orientation is sex-based discrimination under Title VII.  In May, the Second Circuit granted en banc review of Zarda v. Altitude Express.  In Zarda, the plaintiff also brought suit under Title VII, alleging discrimination on the basis of sexual orientation.  The Court upheld the lower court’s finding that Title VII does not protect against sexual orientation-based discrimination.  If the Court overturns Zarda, the Second Circuit would join the Seventh Circuit in finding that discrimination based on sexual orientation violates Title VII.

On Friday, the New York Times chronicled female entrepreneurs’ experiences with sexual harassment in Silicon Valley.  More than two dozen women shared their stories about being sexually harassed by investors and venture capitalists.  Female entrepreneurs shared stories that ranged from being propositioned and touched without consent while seeking jobs, to sexist comments made in the course of trying to secure funding.  These stories speak to a pervasive culture of sexism that may help explain the gender imbalance in the tech industry.  As the article notes, more women have begun to speak out, which may signal the beginnings of a cultural shift within the industry.


Today’s News and Commentary—June 27, 2017

On June 23, the Supreme Court decided Perry v. Merit Systems Protection Board.  The court held that when a government employee’s “mixed case” is dismissed by the Merit Systems Protection Board for lack of jurisdiction, that employee must appeal the decision to the federal district court, not the Federal Circuit.  A “mixed case” is one in which the employee claims that an adverse employment action was violative of the Civil Service Reform Act and federal anti-discrimination laws (e.g. Title VII).

Last Wednesday, Wisconsin Governor Scot Walker signed Assembly Bill 25 into law.  The law reduces “burdens” on employers that hire teenage workers.  The revised law redefines “minor of permit age” to exclude 16- and 17-year-old job applicants, thus eliminating their requirement to obtain a work permit.  The bill implicates restaurants, retailers, and other industries reliant on teenage labor. 

The New York Times discussed a study pointing to a lack of diversity in theater jobs.  Notably, the study found that women and minority actors and stage managers get fewer, and lower-paying, jobs than their Caucasian male peers.  The study was done and published by Actors’ Equity, a labor union focused on, among other things, making the entertainment industry better reflect the United States’ diversity.

On Monday, the Supreme Court announced that it would review Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that made headlines when the Colorado Court of Appeals upheld a finding that a baker who refused to make a wedding cake for a same-sex couple, citing his religious convictions, had committed illegal discrimination against the couple.


Uber Adds a Tip Option

Lost in the extensive coverage of Travis Kalanick’s resignation is the news that Uber is adding an in-app tip option.  According to the Washington Post, the option is already available in Houston, Minneapolis, and Seattle, and should be part of the app nationwide by the end of July.  The move comes on the heels of the Independent Drivers’ Guild’s successful effort to have New York’s Taxi and Limousine Commission propose an in-app tip option requirement in New York City.  Uber has styled the new policy part of its “180 Days of Change” – a campaign that Uber described this way in an email to drivers:

For the next 180 days (and beyond), we’ll be making meaningful changes to the driving experience. Some changes will be big, some will be smallーall will be changes drivers have asked for.

Why now? Because it’s the right thing to do, it’s long overdue, and there’s no time like the present. This is just the beginning. We know there’s a long road ahead, but we won’t stop until we get there.


Daily News & Com­men­tary — June 21, 2017

Yesterday, Travis Kalanick resigned from his post as chief executive at Uber following a series of scandals concerning the company’s workplace culture and legal problems.  Earlier on Tuesday, a group of investors insisted Kalanick step down in a joint letter.  Kalanick will continue to serve on Uber’s board.  Read more here.

The White House announced that President Trump will nominate Marvin Kaplan to the National Labor Relations Board.  Kaplan currently serves as independent counsel at the Occupational Safety and Health Review Commission.  Previously, he served as counsel on the Republican staff of the House Committee on Education and the Workforce.  With two vacancies at the Board and Democrats controlling two of the three filled seats, this announcement puts President Trump on the path to creating a Republican majority at the NLRB.  A Republican controlled Board could rollback many Obama era decisions.  President Trump will also nominate Patrick Pizzella to fill the role of Deputy Secretary at the Department of Labor.  

In international news, the New York Times reported that Laurent Berger, the leader of the French Democratic Confederation of Labor, might be willing to work with the French government to update the country’s labor code.  Berger suggests that President Emmanuel Macron’s victory may provide an opportunity for reform.  Macron has championed “flexible security,” an economic model originating in Denmark.  The system aims to foster agreement between management and labor and reduce unemployment.  While some of Macron’s proposed reforms are likely to face stiff opposition from unions, Berger’s belief that “‘in a globalized world, the economy must be able to adjust” provides hope for the reform effort.  Read more here.     Continue reading

Today’s News & Commentary — June 20, 2017

According to the Bureau of Labor Statistics, youth in Illinois face an unemployment rate of 70% nearly 16 times the state-wide average. These job disparities widen when considering race, as 85% of African American youth and 81.5% of Latinx youth are unemployed as compared with 73.4% of Caucasian youth. Moreover, a recent analysis suggests this level of unemployment will cost the state over $9 billion in lost tax revenue.


After President Macron’s victory in France and his majority in the French parliament, unions have lost many of their allies in government. Unions are unsure whether they will still have a voice in government or whether President Macron will simply ignore their demands. One looming question is whether various unions can mend their differences and work together to achieve policy reform.


Google has revamped its search tool to include job posts from Monster and LinkedIn. Users can now search for “jobs near me” and filter through jobs based on various criteria. Google product developer Nick Zakrasek commented: “With this new experience, we aim to connect Americans to job opportunities across the U.S.” Importantly, Google will not allow companies to directly post jobs on its platform; instead, it will simply pull job posts from other websites.