Labor Relations

Second Circuit Clarifies Federal Law on Employment Retaliation Claims

August 22, 2023

By Thomas G. Eron

In a recent decision, the U.S. Second Circuit Court of Appeals, the federal appeals court covering New York and adjacent states, sought to clarify the federal law standard for evaluating retaliation claims under the principal anti-discrimination statutes including, Title VII, the ADEA and the Reconstruction Era Civil Rights Act. Significantly, the court found that such retaliation claims are evaluated under a separate, more expansive standard than substantive discrimination (including hostile work environment) claims.

Read More >> Second Circuit Clarifies Federal Law on Employment Retaliation Claims

NLRB Adopts New Legal Standard for Evaluating Employer Work Rules

August 8, 2023

By Pamela S. Silverblatt and Gianelle M. Duby

On August 2, 2023, the National Labor Relations Board (NLRB or Board) issued its decision in Stericycle, Inc., 372 NLRB No. 113 (2023), where it adopted a new legal standard to determine whether an employers’ work rules violate Section 8(a)(1) of the National Labor Relations Act (NLRA). The Board’s decision overrules existing precedent and establishes a more stringent test that is likely to render some existing work rules facially unlawful.

Read More >> NLRB Adopts New Legal Standard for Evaluating Employer Work Rules

Conflicting NLRB Stances Create Employer Compliance Plight

July 28, 2023

By Alice B. Stock

The following article by Bond attorney Alice Stock was published by Law360

Can an employer give employees a wage increase or benefits improvement during a union organizing campaign or while negotiating a first collective bargaining agreement after a union has won an election? At present, in most situations, it will be unlawful for an employer to do so.

Read More >> Conflicting NLRB Stances Create Employer Compliance Plight

Supreme Court Increases Burden on Employers Seeking to Deny a Religious Accommodation Based upon Undue Hardship

June 30, 2023

By Adam P. Mastroleo and Kali R. Schreiner

For the past 46 years, employers across the United States have understood that, under Title VII of the Civil Rights Act of 1964 (Title VII), they were permitted to deny an employee’s religious accommodation request based upon “undue hardship” so long as the burden of granting the accommodation would result in “more than a de minimis cost.” Employers based this understanding on the 1977 Supreme Court decision in Trans World Airlines, Inc. v. Hardison,[1] where the Court first stated that requiring an employer to “bear more than a de minimis cost” in granting a religious accommodation would constitute “an undue hardship.”[2] This standard has been consistently upheld by courts throughout the country since Hardison was first decided.

Read More >> Supreme Court Increases Burden on Employers Seeking to Deny a Religious Accommodation Based upon Undue Hardship

Is The End Near? COVID Paid Leave Developments

June 21, 2023

By Erin S. Torcello and Stephanie H. Fedorka

Since the announcement of the end of the federal Public Health Emergency, many clients have inquired as to the status of New York’s COVID-19 Paid Leave Law. 

As a quick recap, on March 18, 2020, in the infancy of the COVID-19 pandemic, then-Governor Cuomo signed a bill that guaranteed certain paid and unpaid leave benefits for New Yorkers subject to a mandatory or precautionary order of quarantine or isolation as a result of COVID-19 (COVID Paid Leave). While the law has remained the same since its enactment, its application has changed as the State and Federal rules regarding quarantine and isolation have changed. For example, at the beginning of the pandemic, the State issued its own rules regarding quarantine and isolation, but now relies exclusively on guidance from the Centers for Disease Control and Prevention to determine appropriate quarantine and isolation protocols.

Read More >> Is The End Near? COVID Paid Leave Developments

The National Labor Relations Board: The Show Must Go On, But With a New Independent Contractor Test

June 20, 2023

By Paul J. Buehler III

On June 13, 2023, the National Labor Relations Board (the Board), in its decision in the Atlanta Opera, Inc,[1] brought back for an encore, its 2014 FedEx II[2] standard for determining independent contractor status under the National Labor Relations Act (the Act). In doing so, the Board overruled and closed the curtains on its 2019 SuperShuttle[3] decision, bringing back a pro-employee standard for determining whether workers are employees covered under the Act or independent contractors not subject to the Act’s protections.

Read More >> The National Labor Relations Board: The Show Must Go On, But With a New Independent Contractor Test

Taking a Gamble: Plant Closings and Mass Layoffs Under the WARN Act

June 6, 2023

By Kali R. Schreiner

In a recent decision, the Second Circuit Court of Appeals overturned a district court’s ruling that an employer was not subject to the Worker Adjustment and Retraining Notification Act and New York Labor Law § 860 (the WARN Acts) when they closed a buffet restaurant and laid off over one hundred employees. In Roberts v. Genting New York, LLC, No. 21-833, the Second Circuit held that a reasonable factfinder could conclude that for purposes of the WARN Acts, the buffet was an operating unit and, therefore, Defendants were subject to the written notice requirements as prescribed by law.

Read More >> Taking a Gamble: Plant Closings and Mass Layoffs Under the WARN Act

CMS Issues Final Rule Withdrawing Health Care Staff COVID-19 Vaccination Requirement

June 5, 2023

By Adam P. Mastroleo and Hannah K. Redmond

On June 5, 2023, the Centers for Medicare and Medicaid Services (CMS) published a final rule withdrawing the requirement that employees of CMS covered health care providers be vaccinated against COVID-19. You may recall that CMS issued an interim final rule in November 2021 that required Medicare- and Medicaid-certified providers to ensure the vaccination of their staff members. The final rule published today effectively eliminates that requirement.

Read More >> CMS Issues Final Rule Withdrawing Health Care Staff COVID-19 Vaccination Requirement

NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity

June 2, 2023

By Hannah K. Redmond and Jacqueline E. Zahn

In a recent decision, the National Labor Relations Board (the Board) returned to its earlier precedent “applying setting-specific standards” in cases involving employees who are disciplined for misconduct that occurs during activity otherwise protected by the National Labor Relations Act (NLRA). The Board announced its return to the “traditional standards” earlier this month in Lion Elastomers LCC II.[1]

Read More >> NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity

NLRB General Counsel Issues Sweeping Challenge to Non-Compete Agreements

June 1, 2023

By Thomas G. Eron and Pamela S. Silverblatt

On May 30, 2023 the National Labor Relations Board (NLRB or the Board) General Counsel issued a memorandum advancing the position that non-compete agreements between employers and employees, which limit employees from accepting certain jobs at the end of their employment, interfere with employees’ rights under Section 7 of the National Labor Relations Act (the Act). The memo, which is the latest pronouncement in an aggressive agenda to curtail established management practices, and expand the reach of the Act, directs the NLRB’s regional staff to begin enforcement of this novel, expansive interpretation of the law.

Read More >> NLRB General Counsel Issues Sweeping Challenge to Non-Compete Agreements