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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog

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OFCCP Information Gathering Alleged to Violate Fourth Amendment Rights Against Unreasonable Searches and Seizures

The  Office of Federal Contract Compliance Programs (OFCCP) has seen a rise in challenges to its rights to access data for the compliance reviews it conducts. Most, if not all, of these challenges have raised Fourth Amendment rights against unreasonable search and seizures. The OFCCP has prevailed on these challenges and has sought immediate enforcement action against those who challenge its right to access data during a compliance review. Attached is the Affirmative Action Compliance Newsletter from Bloomberg Law reviewing the issue and quoting Dykema Cox Smith lawyer, Jaime Ramon.

EEOC Issues Proposal That Would Require Inclusion of Wage and Hour Data in Annual EEO-1 Submissions

On Friday, January 29, 2016, seven years to the day following passage of the Lilly Ledbetter Fair Pay Act, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would require employers with 100 or more employees to report pay data as part of annual EEO-1 submissions beginning with the September 2017 report. The proposed regulation would require affected employers to not only report the number of employees in each protected classification (gender, race, etc.) but to further break down those assignments into twelve pay bands used by the Bureau of Labor Statistics as part of its occupational statistics survey based on annual W-2 earnings. Affected employers also would be required to report the total number of hours worked by employees in each reported band, in an attempt to allow the EEOC to determine when apparent disparities might be attributed to part time work. A sample of the proposed form can be found hereRead More ›

DirecTV Supreme Court Ruling Sets Stage for NLRB Battle Over Class Action Waivers

Class action waivers combined with arbitration provisions continue to be a hot-button issue both in the courts and before federal administrative agencies. Most recently, with its ruling in DirecTV, Inc. v. Imburgia, et al., on Monday, December 14, 2015, the United States Supreme Court again held that the Federal Arbitration Act (“FAA”) trumps state laws prohibiting arbitration. This bolstered its previous ruling in AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), in which the Supreme Court found that, under the FAA, businesses could use standard-form contracts containing arbitration agreements with class action waivers to forbid consumers from banding together in a single arbitration. The Concepcion decision also held that the FAA trumped state law that forbid mandatory arbitration and class action waivers as unconscionable. Read More ›

No Game-Changer for the NCAA: The Ninth Circuit Finds Antitrust Violation but Rejects Lower Court Injunction

The headlines that immediately followed the release of the Ninth Circuit’s hotly anticipated decision in O’Bannon v. NCAA, et al., Nos 14-16601 and 14-17068 announced a blow to amateurism, as the court upheld a finding that certain of the NCAA’s rules violated the Sherman Antitrust Act. But these early interpretations belied the more significant implications of the decision: the Ninth Circuit largely affirmed the institution of amateurism and cleared the way for the NCAA to continue business as usual.  Read More ›

NLRB Refines Standard for Determining Joint Employer Status

In Browning-Ferris Industries of California, a 3-2 decision issued on August 27, 2015, the National Labor Relations Board departed from its long-standing principles for determining joint-employer status. In the decision, the Board held that two entities are joint employers if: (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment (i.e., hiring, firing, discipline, supervision, job responsibilities, work hours, breaks, rules, etc.). Read More ›

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 ›