As the end of the Supreme Court term in June approaches, Court-watchers watch their Twitter and news feeds on Mondays and Thursdays with bated breath. And this past Monday, the news did not disappoint. In a close 5-4 decision in Epic Systems Corp. v. Lewis, the Court ruled that the Federal Arbitration Act unequivocally provides parties the ability to enter into arbitration agreements requiring individual arbitration proceedings, such that employees waive their ability to bring or join a class action. Likewise, the Court rejected the employees’ argument that Section 7 of the National Labor Relations Act prohibits employees from waiving such class action rights.
The unveiling of New York State’s 2019 budget made it clear that the state has maintained its focus on curbing sexual harassment in the workplace. Included in the legislation, which was delivered to the Governor on April 2, 2018, are numerous new requirements impacting both private and public employers.
On April 2, the U.S. Supreme Court held, in Encino Motorcars, LLC v. Navarro, that service advisors at automobile dealerships are exempt from the overtime requirements of the Fair Labor Standards Act. The Court was divided 5-4 on this issue, with Justice Thomas writing the opinion on behalf of the majority and Justice Ginsburg writing the opinion on behalf of the 4 dissenting Justices. The Court reversed a Ninth Circuit Court of Appeals' decision, which found that service advisors were non-exempt employees who were eligible for overtime pay.
On March 30, 2018, the Office of Federal Contract Compliance Programs ("OFCCP") announced the new national hiring benchmark for protected veterans under the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA"). The new hiring benchmark is effective March 31, 2018, and lowers the benchmark to 6.4% from the previous benchmark of 6.7%. The hiring benchmark is the percentage of total hires who are protected veterans that a federal contractor should seek to hire during the year.
We hear that question pretty often from employers these days, and for good reason. It is March 2018, 14 months into a new administration, and the Occupational Safety and Health Administration still does not have an agency head.
On February 26, 2018, the National Labor Relations Board issued an order vacating its decision in Hy-Brand Industrial Contractors. As we recently reported on this blog, the Board's Hy-Brand decision reversed its 2015 Browning-Ferris decision, which had significantly changed the legal standard for determining joint employer status under the National Labor Relations Act.
Just this week, the U.S. Court of Appeals for the Second Circuit (which is the federal appeals court that covers cases that originate in the U.S. District Courts in New York) issued a decision holding that discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act. On its face, Title VII prohibits employment discrimination based on five protected categories: race, color, religion, national origin, and sex. This Second Circuit ruling now places sexual orientation on the same level of protection as those categories historically covered under Title VII.
The "Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for the fiscal year 2018" a.k.a. the Tax Cuts and Jobs Act of 2017 (the "Tax Act") will, among other things, likely make negotiations in connection with sexual harassment or sexual abuse claims more difficult, and settlements for such claims more expensive for employers.
Early in February 2017, a group of drivers at the Bronx Lobster Place, a wholesale seafood distributor, voted 14-12 in favor of union representation, with one challenged ballot. Shortly after the election, the Lobster Place retained Louis P. DiLorenzo and Tyler Hendry in Bond's New York City office. About one year later, after the National Labor Relations Board sustained the Lobster Place's objections to the conduct of the election, a rerun election was held. This time, the drivers voted 22-3 against unionization.
In December 2017, the National Labor Relations Board issued some significant decisions reversing precedent that had been established by the NLRB under the Obama administration, and took other significant actions that may help balance the scales that had been tilted heavily in favor of union interests over the past eight years. Here is a quick summary of those decisions and actions.