NLRB Loosens Standard of Review for Employee Handbook Policies

By former Associate Jack Blum

In major decision, the NLRB increases the weight placed on business justifications for workplace rules and approves of workplace civility policies.

As Use of Service Dogs—and “Fake” Service Dogs—Rises, Employers Faced With New Questions

By former Associate Jeffrey Hord

Over the past few years, the D.C. area—along with the rest of the country—has seen a dramatic rise in the presence and use of service animals, therapy animals, and emotional-support animals for all manner of medical conditions.

The NLRB Targets Independent Contractor Misclassification

By former Associate Jack Blum

Written with assistance from Daniel Bosworth, law clerk.

After the Department of Labor withdrew its Obama-era guidance taking a restrictive view of the situations in which workers can legitimately qualify as independent contractors, as opposed to employees, many speculated that the Trump administration would be giving up its predecessor’s campaign against contractor misclassification and that further developments would be driven by state and local government agencies and private plaintiffs. In the last few weeks, however, the National Labor Relations Board (NLRB) has entered the fray over worker misclassification with a recent enforcement action asserting that misclassifying employees as independent contractors is a standalone unfair labor practice under the theory that misclassification interferes with rights under the National Labor Relations Act (NLRA) (which applies only to employees, not contractors) by asserting that the workers in question do not have NLRA rights at all because they are not employees. The development of a new front in the battle over misclassification at the NLRB should be closely monitored by employers.

Administration Halts New EEO-1 Pay Data Requirements

By: Jessica B. Summers, Associate

Summary: The Office of Management and Budget (OMB) has stayed the Equal Employment Opportunity Commission’s (EEOC) new pay data reporting requirements pending OMB’s review. This means that the prior version of the EEO-1, that employers are familiar with from last year’s filing, will remain in effect for the 2017 filing year.

EFFECTIVE SEP. 18 – Employers Must Use New I-9 Form

By: Jessica B. Summers, Associate

SUMMARY: Effective September 18, 2017, employers must start using the new version of the Form I-9.

Does Title VII Cover Sexual Orientation? Courts Weigh In. EEOC says Yes. Trump DOJ says No.

Takeaway: Splits in the federal Courts of Appeals may send this issue to the Supreme Court. In the meantime, however, the EEOC is basing its enforcement actions on its position that Title VII covers sexual orientation as a form of sex discrimination. It has filed a number of amicus briefs in support of plaintiffs who have asserted sexual ­orientation discrimination claims under Title VII. Employers also need to follow their state and local laws. For example, Maryland and the District of Columbia ban sexual orientation discrimination. Virginia does not, but both the City of Alexandria and Arlington County do. This pattern is repeated across the country. For now, employers should retain their policies on sexual orientation discrimination, include them in any EEO training and continue to investigate allegations of such discrimination.

Status Update on the New Overtime Rules

By Jessica B. Summers, Maryland Employment Law Attorney

Summary:  Earlier this week, the Department of Labor (DOL) issued a Request for Information (RFI) seeking comments regarding the rules that establish which employees can be exempt from the Fair Labor Standards Act (FLSA) minimum wage and overtime pay requirements.  This request, combined with the DOL’s latest position in the key case challenging the version of the overtime rules that were finalized by the DOL last May, strongly suggest that the new overtime rules will never go into effect but that other changes to the preexisting rules may be forthcoming.

Employers Can Be Liable for Failure to Reasonably Accommodate Employee’s Medicinal Marijuana Usage

By former Associate Jack Blum

            In the 21 years since California became the first American state to legalize medicinal marijuana usage, there has been a sea change in societal attitudes towards the drug.  Fast forward to 2017, and the vast majority of states have now legalized medicinal marijuana with several states and the District of Columbia going even further to legalize recreational marijuana use in the absence of a prescription or medical need.  A recent case from the highest court of Massachusetts suggests that the courts may be catching up in the area of employment discrimination to these societal developments, and could carry major implications for employers in Maryland and the District of Columbia.

Should Viral Tweet of CEO’s Response to Employee’s Mental Health Day Prompt Reevaluation of Your Company’s PTO Policy?

By former Associate Jeffrey Hord

The concept of a “mental health day” is often overlooked when employers craft their vacation and leave policies.  However, a recent tweet by a San Francisco-based web developer has sparked a national discussion about mental health and the appropriate way for employers to handle these situations.

No Retaliation For Termination Based on Employer’s Mistaken Belief of False Report, Says Fourth Cir.

By former Associate Jeffrey Hord

On June 7, 2017, the Fourth Circuit Court of Appeals held that, so long as an employer honestly believed its employee had made a false report of harassment, its decision to fire that employee cannot constitute unlawful retaliation...even if the employee’s report ultimately turned out to be truthful.

What Ever Happened to the New Overtime Rules?

By: Jessica B. Summers, Associate

The new overtime rules that were set to go into effect last December are still in limbo as the court order enjoining the rules remains in effect and the Trump Administration’s Department of Labor has not yet decided how it will handle the issue. 

As Congress Considers Changes to the Comp Time Rules – Is Your Business in Compliance Today?

By: Jessica B. Summers, Associate

Summary: The U.S. House of Representative will vote this week on a bill that would legalize the use of compensatory (comp) time by private employers. While it is unclear whether the bill will have sufficient support to pass the Senate, the renewed discussion on this issue is a good reminder for private employers that, for now, providing comp time to non-exempt employees in lieu of overtime is generally prohibited under the Fair Labor Standards Act (FLSA).

Supreme Court Roundup: 2016-2017

by Hope Eastman, Principal

As the Court enters the final stretch of its 2016-2017 term, here is a look at key employment-related cases that have been, or are waiting to be, decided by the Court.

District Court Decides Contract’s Forum-Selection Clause Applies to Non-Party’s Individual Claims

By former Associate Jeffrey Hord

Many contracts (of all kinds) contain “forum-selection clauses,” or provisions in which the parties to the contract stipulate that any lawsuit arising from the contract shall be litigated in a particular court or jurisdiction. These clauses are often very helpful to companies that do business all across the country, or whose employees are scattered across many states, as the company can typically avoid the risk of facing an unfamiliar judge and the added expense associated with learning the laws of an unfamiliar jurisdiction. While a forum-selection clause can generally be enforced only against the parties who signed the agreement in question, the U.S. District Court for the District of Maryland issued an opinion this week illustrating why that’s not always the case.

The New Administration Strikes a Death Blow to the Fair Pay and Safe Workplace Rule

By: Jessica B. Summers, Associate

SUMMARY: On March 27, 2017, President Trump signed a Congressional resolution that permanently eliminates the Obama Administration’s Fair Pay and Safe Workplaces regulations (also known as the “blacklisting rule”) and prevents the agencies from issuing any similar rule in the future.

Recent Cases Leave Status of Title VII Protection for Sexual Orientation Murky

By former Associate Jack Blum

Summary: The extent of Title VII protection against discrimination based on an employee’s sexual orientation remains a gray area after two recent federal appellate cases, and employers should be aware of state laws offering greater protection.

D.C. Circuit Confirms that Employees Cannot Sue for OSHA Retaliation

By former Associate Jack Blum

Summary: D.C. Circuit confirms that OSHA does not permit employees to sue their employers for retailiation; instead, employes are limited to filing complaints with the Department of Labor.

Government Contractors Need to Update Their Pay Transparency Statements

By: Jessica B. Summers, Associate

SUMMARY: The OFCCP recently modified the pay transparency statement that government contractors need to include in their handbooks and post for employees and applicants. The original pay transparency statement requirement went into effect on January 11, 2016, but the OFCCP has now modified the notice that employers need to use to comply.

D.C. Council Considers Overhaul of Recently-Enacted Paid Leave Law

By former Associate Jack Blum

Summary: Days after D.C.’s groundbreaking paid leave act becomes law, the D.C. Council begins considering changes to its paid leave regime.

What Lies Ahead? The EEOC and the New Administration

By:  Hope Eastman, Principal

Summary: Anticipating the Trump administration’s plans for the EEOC, possible changes in policies, programs, litigation priorities and strategies, and guidance on workplace discrimination and harassment.

Montgomery County Council Votes for $15 Minimum Wage

By:  Jessica B. Summers, Associate

SUMMARY: The Montgomery County Council has passed a bill that would increase the minimum wage in the County over the next few years and ultimately raise the minimum wage to $15 per hour for all businesses by 2022.  It remains unclear, however, whether the County Executive will sign the bill into law.  At this time, there is nothing for Montgomery County employers to do but wait and see.