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Showing 27 posts in Labor Law.

New FLSA Regulations Enjoined!

We have posted several blog entries regarding the FLSA regulations announced in May that drastically increased the minimum salary threshold for most executive, administrative and professional employees from $455 per week (or $23,660 per year) to $913 per week (or $47,476 per year). Late Tuesday afternoon, the United States District Court for the Eastern District of Texas granted a motion brought on behalf of 21 states and supported by business groups led by the United States Chamber of Commerce to preliminarily enjoin the new overtime exemption regulations set to go into effect on December 1, 2016.  

The Elements for Preliminary Relief Were Satisfied by the States

At the outset, the court had to determine if the states will “likely succeed on the merits” as the case is further litigated, and if a permanent injunction is on the horizon. The states’ case was premised on both constitutional and statutory grounds. The court concluded that while the states’ constitutional claims were unlikely to succeed, their statutory arguments appeared strong and likely to succeed.  Read More ›

One Down, One to Go: Courts Weigh In on Enjoining DOL Persuader and FLSA Exemption Rules

Over the course of the last year, the U.S. Department of Labor promulgated two controversial regulations triggering court challenges. One rule–known as the “Persuader Rule”–was set to require employer consultants and lawyers to file disclosure reports of any union avoidance activities they engage in, even if that activity was purely advisory in nature and did not involve direct contact with employees. The other rule regards the changes to the overtime exemption regulations, which are set to increase the salary threshold for exempt status from $455 per week to $913 per week, and then to automatically adjust that threshold every three years. Read More ›

NLRB Continues to Make Non-Union Employers Nervous

Last month, the National Labor Relations Board issued two more significant decisions reminding employers – unionized and non-unionized alike – that they may indirectly be subject to the National Labor Relations Act in ways previously unrealized. They did so by making it more difficult for employers using contracted staff or buying the assets of unionized employers to avoid either an obligation to bargain with unions representing the staffing company or predecessor’s employees, or even being locked into the terms unions may have had with those employers upon buying the assets of another employer. Read More ›

Employers Beware: Employees May Disparage You Without Risking Their Jobs

On March 25, 2016, the U.S. Court of Appeals upheld a finding by the National Labor Relations Board (NLRB) that Jimmy John’s sandwich makers were wrongfully terminated after posting hundreds of signs insinuating that the sandwiches they make could make customers sick. According to the NLRB and the court, those employees were engaging in concerted activities protected under the National Labor Relations Act (NLRA).  MikLin Enterprises v. NLRB, Case No. 14-3099 (8th Cir. Mar. 25, 2016). 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 ›

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 ›

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 ›

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 ›