Before I became a lawyer or even considered the profession, I was a waitress. I also was a feminist. I was 18 and working at a restaurant In Providence RI. Ronnie’s Rascal House! One of the line cooks constantly called me “honey, baby and sweetie.” Every time I put an order check on the wheel and spun it to him into the kitchen, he said it. One day I had had enough and I said, “I am not your honey or baby or sweetie.” I snapped those words. He looked at me stunned and said, “I am sorry. I had no idea.” After that we became very good friends. Continue Reading You Have To Believe It To See It!
The incessant rain on the East Coast, interspersed with weird calms of blue-sky sunniness, are jarring in ways that make one reflect. What I reflect upon these days is the speed with which people’s careers are destroyed, like a burst of rain displacing the sun, when they do something stupid that in “my old days” would fade away. Continue Reading Twitter Storms, Flash Floods, No Jobs
Co-Author Nick Vogt*
In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the United States Supreme Court held that public sector unions may not assess union fees against non-union employees covered by a collective bargaining agreement. In so holding, the Supreme Court overturned its decades-old ruling in the case of Abood v. Detroit Board of Education, in which the Court held that public sector unions could assess fees regardless of membership status, because all employees benefit from union collective bargaining agreements regardless of union membership. Continue Reading Supreme Court Holds that Public Sector Unions May Not Assess Union Fees Against Non-Union Employees
Apple has a new $5 billion headquarters building on its campus in Cupertino, California. It was constructed from the imagination of iconic founder, Steve Jobs, who envisioned the structure with its glass-encased interior and exterior rings as a true “temple of design” (according to the San Francisco Chronicle). In fact, architecture and interior design often are aspirational. We construct spaces to reflect not who we are, but who we would like to be, to elevate us from the clutter of our messy lives to a higher plateau. We seek feng shui – uplifting energy. Sometimes, however, concept clashes with real life (like when I realized my amazing new master bathroom with the walk in shower and granite counters had no place to hang hand towels; my interior designer thought that towel rings would interrupt the feng shui).
Continue Reading Does Apple’s New HQ Violate OSHA?
When you are an employment lawyer, you tend to view events through a particular lens. Recently, I had my “ADA specs” on when I read an article about a Duke University professor who, in discussing her book, “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America,” made a remark about Libertarians during a book tour. She opined how she found it “striking … how many of the architects of this cause seem to be on the autism spectrum,” The professor, Nancy MacLean, continued, “You know, people who don’t feel solidarity or empathy with others and who have difficult human relationships sometimes.” (You can read the story here.) Continue Reading Along the Spectrum
The National Labor Relations Board’s Office of the General Counsel recently issued an Advice Memorandum and, although the employer and employee names are blanked out, it obviously is about James Damore and Google. Unless you have been in the wilds of Pago Pago for a year, you have heard the story of James Damore, the “Googler” (that’s what they call themselves at Google) who, in response to one too many company diversity training initiatives, prepared a memo to convey his thoughts and engage in open dialogue. Continue Reading NLRB GC Is Woke! (In more ways than one…)
Leaf raker, babysitter, waitress, retail salesperson, lawyer. I have had many jobs. Each has had value. Often, the pay and benefits did not match the value. When the value of the job exceeded the remuneration, I looked to find the next job. Continue Reading The Value of Labor Goes Beyond Wages
I became the commissioner of my daughter’s county basketball league when she was nine. No one else would “step up.” The prior year, a player had slapped another player in the handshake line at the end of a game in retribution for rough play (by an 8-year-old girl!) and no game commissioner was there to intervene. I decided to take on the role of cool-headed logistics manager: a non-coach who could make sure the game schedule was set, the rules were observed, and each game had a designated adult in attendance to avoid bad sports behavior (whether by players, coaches or parents). But this “cool headed commissioner” is ripping mad at the NLRB (or, to be more precise, the NLRB majority) for concluding that junior and senior high school lacrosse referees are employees and not independent contractors entitled to unionize! Continue Reading The NLRB Thinks High School Sports Referees Can Unionize!
The issue of whether employees can be required to sign arbitration agreements that contain waivers of their right to file a class or collective action over employment-related disputes is one that has drawn much attention – and much conflict – in recent years. The Obama administration, it seemed, steadfastly opposed such waivers. Under the Trump administration, which (regardless of your politics) has had a slow and bumpy transition of federal agency leadership, the agencies do not appear to be operating from the same playbook – as evidenced by recent actions by the National Labor Relations Board, (NLRB), the Department of Justice (DOJ), and the Consumer Financial Protection Board (CFPB). Continue Reading The Government Seems Confused About Class Action Waivers
For 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.