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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog

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U.S. Department of Labor Proposal Rewrites Overtime Exemption: Employers Beware!

Yesterday, the U.S. Department of Labor issued a set of proposed regulations that, if they become law, will dramatically alter the way that many employers are required to compensate their employees. Under the proposed regulations, employers would have to greatly increase the pay of lower paid exempt employees in order for them to continue to be treated as exempt. Read More ›

Diversity Guidance for Banks: A Light Hand!

The long awaited interagency policy statement of diversity policies and practices for banks (and other entities regulated by the federal banking regulators) has been issued. There were more than 200 comments on the October 25, 2013, proposal that assisted the agencies in achieving clarity in the final statement.

Here are some of the big picture take-aways from the statement: Read More ›

One Month into NLRB’s New Ambush Election Rules: Non-Unionized Employers’ Fears are Realized

Just over a month ago, the NLRB’s new “quickie election rules,” a/k/a “ambush election rules,” went into effect. After only a month, the impact of the new rules already is being felt.

The Courts

First, on the legal front, the challenges to the new rules are not faring well. Two cases have been filed, one in Texas and the other in Washington, D.C. The Texas court has already thrown out the challenge as being without merit. The D.C. case is still pending, but the court has denied a preliminary injunction, which is an indicator of the court’s view as to the strength, or lack thereof, of the challenge. More challenges may surface, but absent a victory somewhere, it appears that the rules are here to stay, at least for the foreseeable future. The Congressional effort to block the rules via legislation also failed. Read More ›

Sixth Circuit Reverses Earlier Opinion Extending Telecommuting As A Widely Available

Last year, the Sixth Circuit Court of Appeals triggered alarms among employers throughout the country when it issued its opinion in EEOC v. Ford Motor Company, 752 F.3d 634 (6th Cir. 2014),  In that case, the Court held that an employee who suffered from severe irritable bowel syndrome (IBS) was entitled to a trial on her claim that she remained qualified for work as a resale steel buyer despite her inability to physically attend work with regularity.  Because the plaintiff had requested an accommodation of being permitted to work from home up to four days per week, and not on set days, the Cour held an issue of fact existed as to whether such a requested accommodation was reasonable, and whether the employer had failed to properly accommodate her disability under the Americans With Disabilities Act given the advances in technology that have made such telecommuting arrangements more common.  Employers were alarmed at the prospect of having employees demand, and be entitled to, “work from home” arrangements based on their representation that they could perform their job nearly as well from their home as they could in their office.

The Court granted en banc review of its earlier opinion and, on April 10, 2015, issued an opinion reinstating a more common sense approach to telecommuting based on the needs of the position and the typical requirement that employees actually be present in the workplace in order to work.  The Court did not, however, rule that telecommuting always is unavailable as a reasonable accommodation; employers are well advised to consider the Court’s opinion interpreting the accommodation requirement and examining the “interactive process” in which employers facing requests for accommodation must engage. Read More ›

NLRB Gives Examples of “Illegal” and “Legal” Handbook Provisions and Work Rules

On March 18th, the NLRB’s General Counsel published a 30-page “Report of the General Counsel Concerning Employer Rules.” The Report provides a fairly comprehensive summary of the types of rules the NLRB has found to be contrary to Section 7 of the National Labor Relations Act, the provision that guarantees employees—in both union and non-union workplaces—the right to engage in “concerted activity.” Read More ›

NLRB Shows Expanded Interest In Nonunion Employers

Please note: This article was first published in Law360 on January 16, 2015

It wasn’t too long ago that the National Labor Relations Board rarely concerned itself with the policies and practices of nonunionized employers, particularly when union activity, such as organizing activity, otherwise was not present in the workplace. Lately, though, the NLRB is applying what were often regarded as virtually dormant legal concepts to the nonunionized workplace. Read More ›

Sixth Circuit Affirms Limits on Employees’ Ability to be Paid for Minor Impositions Made During Meal Breaks

This week, the Sixth Circuit Court of Appeals decided two cases affirming that under the Fair Labor Standards Act, employees seeking compensation for work related activities performed during lunch breaks have the burden to show that they spent their meal time predominantly for the employer’s benefit, and that employees are precluded from recovering when they do not follow an established reporting procedure.  These cases clearly establish that minor burdens during meal breaks, such as monitoring radios or being available for emergencies, are not significant enough to convert the breaks to compensable work time.  Consequently, the Sixth Circuit further clarified its stance that, so long as the break is still primarily for the employees’ benefit, the time need not be counted for overtime pay calculation purposes. Read More ›

2015 Brings Significant Changes To Wage Laws

A new year brings new state minimum wages….

Though employers always need to be aware of changes in minimum wage laws in the locales where they operate, it seems that a tidal wave of those changes go into effect in states and municipalities across the country each January 1. Those changes, as well as a number of other issues on the horizon, must be in the forefront of employers’ minds as this new year begins. Read More ›

NLRB Adopts “Quickie Election Rules”: Its Threat Was, After All, A Promise

After announcing its intentions in 2011, by a 3-2 vote the NLRB published its final rules to overhaul the way it will handle petitions filed by unions to represent employees.  The NLRB is advertising the new process as a means for “modernizing” and “streamlining” how petitions and representation disputes will be handled.  The employer community views the changes as a blatant attempt to assist unions in their efforts to organize employees. 

The “quickie election rules,” as they are commonly referred to, will shorten the period from when an election petition is filed with the NLRB to when the actual election is to be held from the typical 6 weeks to as few as 2 weeks, provide unions with more access to employees during the campaign period, and limit an employer’s ability to object to an petition.  The new rules will go into effect on April 14, 2015. Read More ›

NLRB Reverses Itself: Employer Email Systems Now Can be Used by Employees for Union-Related Communications.

In 2007, the National Labor Relations Board held in its Register Guard decision (decided 3-2) that an employer was within its right to manage its property and prohibit use of its email systems for non-business related purposes, including union organizing.  Today, in a 3-2 decision, the NLRB took a “180” and held in the Purple Communications case that its earlier decision was wrong and such use is permitted under the National Labor Relations Act.   Read More ›