shadow-dollar-sign-1239535I enjoy those cases where those (sometimes uppity) government agencies get a taste of their own medicine. I previously told you about the EEOC being sued for failing to accommodate its own employee’s disability, for example. Here’s another one – the U.S. Department of Labor, which is the federal agency that enforces the Fair Labor Standards Act (FLSA), including its overtime provisions, just agreed to pay $7 MILLION to settle a claim that it failed to pay overtime to its own employees!!! Continue Reading DOL Settles Its Own Multi-Million Dollar Overtime Suit

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The Department of Labor has issued revised versions of its “Employee Rights Under the Fair Labor Standards Act – Federal Minimum Wage” and “Employee Rights – Employee Polygraph Protection Act” posters, which all covered employers are required to post. Employers must post the revised versions as of August 1, 2016. Continue Reading Revised Mandatory Fair Labor Standards Act and Employee Polygraph Protection Act Posters Effective August 1, 2016

As you all likely know, the latest pop culture craze is Pokémon Go, where individuals use their mobile IMG_3414devices to catch Pokémon creatures. I’ve been watching my crazy teenage son play this everywhere. He was particularly excited about the Dratini that he caught at the restaurant last night, pictured here. Apparently it’s really rare. Whatever…

My son is not the only one obsessed with this game. Given the popularity of the game as well as the extensive time that players are spending on it (some have described it as an “addiction”), wise employers should be prepared to address the impact of employees playing Pokémon Go (and other games in the future) in the workplace and even on company-provided equipment. Continue Reading Pokémon Go is a No-Go in the Workplace

yoga-1159968Employers (hopefully) know that you can’t fire someone based on a legally protected personal characteristic, like race, sex, religion, age or disability (among many other things). But apparently, being “too cute” is not one of them!

In this case, Edwards v. Nicolai, a yoga instructor, Dilek Edwards, worked at a chiropractic and wellness clinic owned by Charles Nicolai and his wife, Stephanie Adams. (Ms. Adams, by the way, is the first openly lesbian Playboy Playmate (Miss November 1992), as reported by the U.K.’s Daily Mail. Isn’t that intriguing?) According to Ms. Edwards, her relationship with Dr. Nicolai was strictly professional. At one point, however, he told Ms. Edwards that his wife might become jealous of her because she was “too cute.” Ms. Edwards only met Ms. Adams once, at the office, and the meeting was cordial. Continue Reading Fired for Being “Too Cute”

U-Turn-SignIn another blow to management, on July 11, 2016, a divided National Labor Relations Board issued Miller & Anderson, in which it reversed course after more than a decade to return to the rule established in the 2000 case of M.B. Sturgis, Inc., whereby employees supplied by a staffing agency can be included in a single bargaining unit — and vote in an NLRB representation election — with an employer’s regular employees without the consent of both employers.

In 2004, M.B. Sturgis was itself reversed by Oakwood Care Center, in which the Board held that a union could organize a bargaining unit consisting of an employer’s regular employees and employees supplied by a staffing agency only if both the employer and the staffing agency consented to a combined secret ballot election.

Continue Reading NLRB Eases Unionization of Employees Referred by Staffing Agencies

Imagine this: Your cobook 2mpany has policies in your employee handbook determined to be unlawful by the NLRB.  Then, you and the NLRB engage in a line-by-line revision of the policies to ensure compliance with Board law and thereafter you issue a new handbook, with policies approved by the Board, to your employees.  Everything is ok, right? Wrong!  This is exactly what occurred in Boch Imports, Inc. v. National Labor Relations Board.  In affirming the NLRB, the First Circuit determined that the Employer failed to properly repudiate its prior, unlawful handbook policies even though it revised those policies in collaboration with the NLRB Regional Office. Continue Reading Must Employers Repudiate Unlawful Handbook Policies?

gavel-1238036The U.S. District Court in Minnesota ruled, on June 22, 2016, that the Department of Labor’s new interpretation of the advice exemption from the persuader rule is “untenable” and “flawed.”   The Court did not issue an injunction against the new interpretation, which goes into effect July 1, 2016, but that was based on its finding that the DOL suspended the most objectionable reporting requirement after the lawsuit was filed.  The challenge to the new interpretation was filed by Worklaw Network, a national alliance of labor and employment firms of which we are a member.  Our firm, along with Seaton, Peters & Revnew, P.A. of Minneapolis, represented Worklaw, as we discussed in a prior post, “Shawe Rosenthal and Worklaw Just Sued the DOL.” Continue Reading Court Finds DOL’s New Persuader Rule “Flawed”

2000px-Venus_symbol.svgOn Tuesday (June 14, 2016) of this week, the White House Council on Women and Girls together with the Department of State, Department of Labor, the Aspen Institute, and Civic Nation held the Summit on the United State of Women.   On that same day, the Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule updating the OFCCP’s sex discrimination guidelines.  According to the OFCCP’s Fact Sheet, the revisions were to bring the guidelines, which are from what the OFCCP called the “Mad Men” era (1970’s), up to date.

The OFCCP published a Notice of Proposed Rulemaking on January 30, 2015 and received 553 comments on the proposed rule.   The Final Rule will take effect on August 15, 2016. Continue Reading OFCCP Issues Final Rule Updating Sex Discrimination Guidelines

That’s an eye-catcher of a title, isn’t it? As reported by the New York Times, Babeland, an adult toy store, became the first sex shop to become unionized. Workers at three New York City locations voted to be represented by the Retail, Wholesale and Department Store Union, one of the country’s largest retail unions.vienna-2-1552451

Why did they choose to unionize? There were several typical reasons – wanting more transparency around hiring, promotions and discipline, as well as better ways of addressing workplace disputes and grievances.

But there were some other, less typical reasons. One is the customers. I’m sure you aren’t surprised to hear that Babeland’s customers can be, well, difficult. Some of them seem to believe that it’s ok to sexually harass sex shop workers. The workers want management to provide better training and support in dealing with these folks. Continue Reading Sex Shop Workers Unionize

In a perplexing – if not shocking – decision, the National Labor Relations Board determined that there is substantial difference between an employee having the opportunity to vote in a mail ballot election, and his or her vote in fact being counted.

In Premier Utility Services, LLC, the employer, a utility company with 101 employees living and working in New York City’s five boroughs, participated in a mail ballot election from October 20 to November 4, 2015 to determine whether Communications Workers of America, Local 1101 would represent the petitioned-for employees.  However, as of November 4, 2015, the NLRB Regional Office had received only four (!) ballots.  As a result, the parties postponed the tally of ballots until November 12, 2015, a somewhat usual departure from the NLRB’s usual election procedures.  By November 12, 2015, the NLRB only received 34 ballots out of the possible 101.  Nevertheless, the Region counted the ballots and the Union received a majority of the votes counted, 20-14.Mail

Following the count, the NLRB Regional office received an additional 55 ballots, including 48 ballots that were postmarked before November 4, the end of the original voting period.  The Regional Director, however, refused to count the 48 ballots that were postmarked before November 4 because they were received after November 12.  As a result, the union was certified as the bargaining representative based on only 34 votes out of 101 eligible voters, even though a large number of additional ballots had been timely mailed!!!

Continue Reading NLRB Refuses to Count Timely-Mailed Ballots