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.

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.

 

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.

Daily News & Commentary — June 19, 2017

As covered earlier today, the Department of Justice announced last Friday that it will switch over its support in the upcoming Supreme Court case, NLRB v. Murphy Oil, from the National Labor Relations Board to Murphy Oil.  The issue in the case, set for the 2017 October term, is whether arbitration agreements with individual employees that ban employees from pursuing employment claims on a class or collective basis (class action waivers) violate the NLRA.  Under President Obama, the DOJ wrote an amicus brief in support of the NLRB, which had ruled that such arbitration agreements did indeed violate the NLRA.  But, as the DOJ states in its re-filed brief, “after the change in administration, the office reconsidered the issue and has reached the opposite conclusion.”  The DOJ now argues that “nothing in the NLRA’s legislative history indicates that Congress intended to bar enforcement of arbitration agreements like those at issue here.”  NLRB v. Murphy Oil was consolidated with Epic Systems Corp. v. Lewis (the 7th Circuit opinion that caused the circuit split), and Ernst & Young LLP v. Morris—all three cases received significant attention when their opinions were issued.  Whatever the outcome, the case will be a landmark case for employment law.

Up to 2000 of British Airways’s cabin crew employees are preparing to strike from July 1 to 16.  The walkout comes after the workers, organized as members of the Unite union, rejected an offer that allegedly withheld bonuses and perks for 1400 cabin crew employees who had gone on a four-day strike earlier in 2017.  Unite has said it will pursue legal action against British Airways on behalf of the workers allegedly facing retaliation.

Over 5000 employees of Clark County, NV, which includes Las Vegas, came to finalize three-year labor agreements after several months of bargaining.  The workers are represented by Service Employees International Union Local 1107.  The two contracts cover supervisory and non-supervisory workers, and include a 2% raise.  County commissioners are expected to vote on approving the new contracts tomorrow.

Russian organizers of the 2018 FIFA World Cup disputed a Human Rights Watch report published last Wednesday, which found that at least 17 construction workers had died as a result of brutal work conditions.  The chief executive of the World Cup’s local organizing committee responded that the construction sites were under routine inspection, and that the organizing committee had not found conditions akin to those reported by Human Rights Watch.

On Friday, USA Today published an investigative report into the troubling work conditions faced by American truckers.  Journalist Brett Murphy covered how some truckers, many of whom are immigrants with minimal English-speaking ability and are thus vulnerable to abuse, work essentially as indentured servants as a result of being misled to take on debt to finance their own trucks.

Solicitor General Reverses Position in Murphy Oil

This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.

Despite previously submitting a petition for writ of certiorari for the National Labor Relations Board, the Solicitor General’s office has reversed its position in the consolidated cases of Murphy Oil USA, Epic Systems, and Ernst & Young and urges that the Supreme Court find that class action waivers are enforceable.  In an amicus brief submitted to the Court on Friday, the Solicitor General’s office explained that it has rethought its support for the Board after the election of President Trump.  The Solicitor General’s office writes:

“We do not believe that the Board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.  More specifically, the Board’s view that the phrase “other concerted activities” in 29 U.S.C. 157 encompasses participation in collective or class litigation may reflect a permissible interpretation of that language, such that an employer might commit an unfair labor practice by discharging employees who initiated or joined such suits in accordance with other provisions of law.  It does not follow, however, that Section 157 expands the range of circumstances in which such litigation can go forward, by allowing employees who validly waived their collective-litigation rights under the FLSA to escape the consequences of that choice.  The Board’s approach fails to respect the FAA’s directive that arbitration agreements should be enforced unless they run afoul of arbitration-neutral rules of contract validity.”

This reading of the two statutes is a sharp departure from the government’s position in its petition for writ of certiorari where the Solicitor General argued:

“the ability to engage in concerted activities under the NLRA is not a mere procedural means for vindicating some other statutory right. It is, as the Board has concluded, ‘the core substantive right protected by the NLRA and is the foundation on which the Act and Federal labor policy rest….This Court has never held that arbitration agreements may waive such substantive rights or be given effect in contravention of the statutes that create and protect those rights.”

Again, the full amicus brief is available here.