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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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05 Jun 2017 Are You Recording This Conversation?

  Most of us expect to engage our colleagues without concern that our workplace conversations are secretly recorded. However, today everyone has a smartphone that readily allows for spontaneous photographic, video, and audio recording.   Until recent times, attorneys generally advised clients that it was appropriate to insist that workplace conversation not be recorded. Employers took the position that a team culture did not support recording conversations; colleagues need to be able to speak freely with each other at work.   That argument just lost-out…

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17 Feb 2017 New Nominee, New Path to Confirmation – Acosta Draws Initial Support From Management and Labor

  In sharp contrast to his predecessor, new Labor Secretary nominee Alexander Acosta has received initial support from both management and labor. Management views Acosta’s private sector experience combined with his political views as reason to believe that he will adopt a more management-friendly stance. Labor is looking to Acosta’s past government service as a sign that he will enforce labor laws. In a statement yesterday, Acosta said, “I thank the president and his staff for their confidence in me and I am eager to…

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16 Feb 2017 Trump Announces Alexander Acosta as Labor Secretary Nominee After Andrew Puzder Withdraws

  At a press conference, President Trump announced Alexander Acosta as the new nominee for labor secretary. Acosta is currently the dean of the Florida International School of Law and previously served as a member of the National Labor Relations Board and later assistant attorney general for the Civil Rights Division through appointments by President George W. Bush. If confirmed, he will be the first Hispanic member of Trump’s cabinet.   Yesterday, just one day prior to his Senate confirmation hearing, Andrew Puzder withdrew as…

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17 Nov 2016 The World According to Trump: Could the Obama NLRB’s Pro-Union Rulings be Undone?

  There is no shortage of buzz going around about what impact President-elect Donald Trump might have at the National Labor Relations Board. Does Trump’s election mean the Board’s controversial decisions (e.g. Browning-Ferris, D.R. Horton) of the past eight years will be undone? As my colleague Jerry Lutkus blogged earlier this week, it is likely that Trump quickly will move to change the composition of the Board to a Republican—and thus more pro-employer—majority. However, a change in the composition of the Board does not equal…

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15 Nov 2016 The World According to Trump: Trump’s Impact on Traditional Labor

  The NLRB has been a quintessential symbol of organized labor in the United States. Under President Obama, the NLRB’s resurgent influence under President Obama breathed new life into unions, and extended its reach of employee-friendly policies into non-union businesses. What can we expect under President Donald Trump?   It is worth noting that the election statistics show President-elect Trump’s success stemmed, in part, from uncharacteristic support of union households, who were apparently determined to regain protections for the working class. Now that Trump emerged…

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25 Oct 2016 Down to the Wire: DOL’s “Blacklisting Rule” Enjoined

  A federal judge in Texas has blocked implementation of major portions of the U.S. Department of Labor’s (DOL) Fair Pay and Safe Workplaces rule, the so-called “blacklisting” rule.   Judge Marcia A. Crone of the U.S. District Court for the Eastern District of Texas entered a nationwide preliminary injunction order on Oct. 24 blocking the Oct. 25 implementation date of the DOL rule, along with a related Obama Executive Order, the Federal Acquisitions Regulations (“FAR”) Rule and the DOL’s Guidance regarding the FAR Rule….

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12 Sep 2016 Employee Misclassification as Independent Contractor We Knew about the DOL and IRS Issues - Now the NLRB Says it May be an Unfair Labor Practice

  As we have noted in prior blog posts, the Department of Labor (DOL) has increasingly taken the position that employers more often than not are misclassifying statutory “employees” as independent contractors. Misclassifications such as this can result in back-pay, liquidated damages and attorney’s fees for individuals as well as potential civil penalties. This is in addition to the IRS penalties that may be imposed for failing to pay back payroll taxes for individuals who are actually employees and not independent contractors. As noted on…

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05 Jul 2016 NLRB Hits Ceiling in Continual Push to Expand Scope of Protected Concerted Activity

  Whether the National Labor Relations Board (NLRB) is issuing rulings invalidating employee handbook policies that encourage civil behavior among employees or attempting to get discharged employees reinstated after profanity-laced Facebook rants against their supervisors, the board seems determined to push the limits of what can be considered “protected concerted activity” under the National Labor Relations Act (NLRA). Regardless of whether an employer is a union shop or not, under the NLRA employers may not take adverse action if the employee’s conduct qualifies as protected…

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18 Feb 2016 West Virginia Becomes Next Right-to-Work State Over Protest, Veto of Governor

  Employers take note and review your agreements and practices – On Feb. 12, the West Virginia house and senate overrode Governor Earl Ray Tomblin’s veto of SB 1 (known as the West Virginia Workplace Freedom Act), which amends the Code of West Virginia to prohibit employment agreements that require membership in a labor organization as a condition of employment, or any requirement that a person becomes/remains a union member as a condition of employment.   Additionally, SB 1 prohibits any requirement that, as a condition…

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31 Jul 2015 Challenge to NLRB “Ambush Election Rules” Fails

Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia has granted summary judgment in favor of the National Labor Relations Board (NLRB) in a highly-publicized action brought by the Chamber of Commerce and a District of Columbia construction company challenging the unprecedented representation case procedures adopted by a split NLRB in 2014. Chamber of Commerce of the United States of America, et. al. v. National Labor Relations Board, Civil Action No. 15-0009 (July 29, 2015). Commonly known in media reports…

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