Last year, Fiona’s sister told her that a herd of goats, complete with a  goat herder, had moved into the park next to her house. They were brought in to clear certain park areas of overgrown vegetation. What a charming, effective, and environmentally-friendly solution! Apparently Western Michigan University had the same thought, because it also brought in goats to clear areas of the campus. But a union has decided to butt in and has filed a grievance against the University, claiming that the goats were performing “union work!” (We can see it now, brave goats crossing a picket line to get to their jobs!) Continue Reading Animal Subcontracting – Getting the Union’s Goat!

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As we previously blogged, Shawe Rosenthal, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which we are a member, filed suit last year against the U.S. Department of Labor to block the DOL’s new interpretation of the advice exemption of the Labor Management Reporting and Disclosure Act (“LMRDA”), or the “persuader rule.”  And now, on Monday, June 12, 2017, the DOL announced a Notice of Proposed Rulemaking (“NPRM”) that proposes to rescind that new persuader rule interpretation.  Continue Reading We Sued the Department of Labor, and Now It Has Backtracked on the Persuader Rule

James ComeyWhether you live in a blue state, red state, or just in the state of denial, you surely have heard by now about President Trump’s firing of FBI Director James Comey.  And whether you think the termination was “way overdue” or “bat sh–  crazy,” we can all probably agree that it was not exactly HR 101 when it comes to best practices for handling an employee termination.  So, what are some of the lessons we can draw from this situation? Continue Reading HR Lessons from the Comey Termination

NLRB logoFor several years we have watched the National Labor Relations Board take ever-more aggressive positions that (in our view) ignore the realities of the modern-day workplace and business operations (or really, common sense). Think handbook cases, Facebook cases, email cases….. you get the picture.  Republican members of the Board have vehemently protested the actions of the Democratic majority, to no avail. So with the change to a Republican administration and the recent appointment of the sole Republican Board member – Philip Miscimarra – first to the Acting Chairman and now regular Chairman role, we had great expectations that the Board would return to a more balanced (i.e. sane) perspective. Continue Reading A Battle for the Soul of the NLRB?

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Griffin?…Griffin?…Griffin?….

Readers of this blog likely know the first reference. But, how about the second? Give yourself a hand if you said “Richard F. Griffin, Jr., General Counsel (GC) of the National Labor Relations Board.” GC Griffin, a holdover from the Obama administration, decided last week that the new Trump administration was not going to have all the fun in Washington, D.C.  What is it that GC Griffin did, you ask? Well, he decided that your favorite running back from Stanford, or that dynamic wide receiver from Northwestern, are employees under the National Labor Relations Act, entitled to full protection under the Act! Continue Reading Are College Football Players Employees? The NLRB General Counsel Thinks So!

keys-minFor nearly 35 years, automobile dealers relied on the U.S. Department of Labor’s position that service advisors fell within the Fair Labor Standards Act’s exemption from overtime for “salesmen, partsmen, or mechanics primarily engaged in selling or servicing automobiles.” In 2011, the DOL “upended” this interpretation by issuing regulations specifying that the exemption did not apply to “sales personnel” unless they sell vehicles.  Thus, service advisors were deemed non-exempt.

In June 2016, in Encino Motorcars, LLC v. Navarro, No. 15-415, 2016 WL 3369424 (2016), the Supreme Court held that the 2011 regulation was not entitled to deference because it was issued without the requisite reasoned explanation for a change.  The Court did not decide whether service advisors are, or are not, exempt.  The U.S. Supreme Court remanded the case to the U.S. Court of Appeals for the Ninth Circuit (which had decided the case below) with instructions that the appellate court not give any deference to the DOL’s regulations.  In other words, the appellate court should review the duties of the position (the sale of repair and maintenance services) and decide if the duties fell within the statutory exemption.

Continue Reading Automobile Service Advisors: Exempt or Non-Exempt

auction-gavel-HpmTks-clipartAs you may remember, Shawe Rosenthal joined with other law firms in Worklaw® Network in a lawsuit against the U.S. Department of Labor to block its implementation of the controversial “persuader rule” in order to protect your right to seek counsel on employment, labor and HR matters with privacy and confidentiality. Here’s a brief recap of the milestones: Continue Reading Persuader Rule Lawsuit Update

Today, December 1, 2016, the Department of Labor issued a press release announcing that it had filed an appeal to the U.S. Court of Appeals for the 5th Circuit of the emergency nationwide injunction of the new overtime rule, which had been granted last week by Judge Amos Mazzant, as discussed in our November 23 blog, “Overtime Rule Will Not Take Effect on December 1.” The preliminary injunction temporarily blocked the DOL’s new rule raising the required minimum salary level for the Fair Labor Standards Act’s white-collar exemptions from the requirement to pay overtime pay. The rule was set to go into effect on December 1st.

As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question.  There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty.

The DOL’s revised rule would have doubled the salary requirement for white collar (executive, administrative and professional) employees from $23,660 per year ($455 per week) to $47,476 per year ($913 per week).  The required minimum salary for the highly compensated employees’ exemption would also have been raised from $100,000 to $134,004. These salary levels would have been subject to automatic adjustments every three years. The new rule did not change the duties test for any of the exemptions.

The new rule was challenged by 21 states and multiple business groups, arguing that such change was unlawful. In issuing the preliminary injunction, the judge agreed, noting that the rule change “creates essentially a de facto salary-only test,” which Congress had not intended. In the press release, however, the DOL stated, “The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule.”

jpgThis week, the United States Citizenship and Immigration Services (USCIS) published an updated I-9 Form on its website, which can be accessed here.

The Immigration Reform and Control Act prohibits employers from hiring people without first identifying their identity and employment authorization.  The I-9 Form is the mechanism to achieve that.  Employers are required to complete the I-9 Form within three days of the first day of work for all new hires.

By January 22, 2017, all employers will need to be using the revised form for all new hires.  Until then, employers can either continue to use the current version, which is dated 03/08/2013, or they can use the new version.  The version date is located at the bottom left corner of the form.

Continue Reading USCIS Issues New I-9 Form

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?