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Message from the Communications Chairs, Jennifer Harper and Angela Desilva

Greetings and welcome to the newest version of our committee newsletter. We will now be publishing our newsletter in a longer format on a bi-monthly basis. We hope you enjoy the new look and continue to find it a useful reference tool as well as reminder of upcoming events. The newsletter is as much yours as ours, and we encourage you to propose or submit articles about the latest trends in employment and labor law. If you have thoughts about future topics or want to join the publication staff, please email us at or

We look forward to your input and comments!
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ACC Employment and Labor Committee Upcoming Events

Committee Calls/Legal Quick Hits:

May 4, 2016, 3:00 PM ET: The U.S. Department of Labor’s New “Persuader Activities” Rule Effective Late April 2016: An Overview and Discussion of Potential Challenges to Implementation

Almost five years after proposing its rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act, the U.S. Department of Labor’s final rule is scheduled to take effect in late April. Please join Phil Rosen, Co-Leader of Jackson Lewis’ Labor and Preventive Practices Group, for an overview of the final rule, a discussion of pending challenges to its implementation and legality, and suggestions for employers’ consideration about what they can do now to remain in compliance.

June 1, 2016, 3:00 PM ET:Website Accessibility and Accommodations under the Americans with Disabilities Act

With the proliferation of website accessibility lawsuits, businesses, educational institutions, and government entities providing goods and services to the public online must pay close attention to their legal obligations under Title III of the ADA. At the same time, employers must ensure they provide reasonable accommodations to employees with regard to, among other things, recruiting, onboarding, and employee benefits websites. Please join Jackson Lewis for an informative presentation on the latest legal developments in this area of the law and practical guidance for compliance.


June 8, 2016, 2:00 PM ET: Global Trends in Discrimination, Harassment, and Equal Opportunity Laws

Long thought to be predominantly a US concern, human rights laws around the world are bringing equal opportunity issues to the forefront throughout the multinational operation. From gender requirements on corporate boards in Europe, to a sweeping sexual harassment law in India, to new family-leave recognitions in Japan, global developments in human rights law command the attention of headquarters and regional in-house counsel like never before. Using hypotheticals, a panel of current and former in-house counsel will discuss what these developments mean for the management of employment issues for the multinational employer.

If you’re looking for a way to get more involved in Employment and Labor Law Committee (ELLC), please consider serving as a moderator for one of our webcasts. Moderators attend a brief orientation to webcasts with ACC staff and the program presenters, introduce speakers before the webcast, and provide other information to viewers during the program.

Last, but not least, please send your topic ideas for future programs to one of the Webcast Subcommittee Co-Chairs: Alexis Pheiffer ( or Molly Vigour ( We value your feedback and look forward to providing you with quality programming in the future.
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The Employment and Labor Committee is nearly 7,000 members strong, and one of our best resources is each other. The eGroup postings are a forum for members to exchange ideas, share best practices, template forms, and many other resources. Members may submit eGroup inquiries, and any member may respond. If you are concerned about using your name, you may respond anonymously. And eGroup responses are informational only, and are not considered legal advice or counsel. We highly recommend that you take advantage of this resource. Postings may be found here.
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Job Listings

For current career opportunities in the employment & labor law, please click here.
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Policy Committee

EEOC Developments: As of January 1, 2016, the EEOC requires that all position statements and nonconfidential exhibits must be sent to Charging Parties. Confidential information, which the Charging Party should not see, must be marked confidential and put in separate files, grouped by the reason for confidentiality and the position statement should refer to, but not state, the confidential information. A Charging Party can respond to the position statement and nonconfidential information, but the Respondent will not see the response. According to the EEOC, a Respondent who needs an extension of time to respond should request such extension as soon as possible and must demonstrate due diligence in drafting a response to the EEOC charge.

In addition, the EEOC recently issued a guidance for avoiding discrimination against Muslims. .

In EEOC v. ConsolEnergy, Inc., the N.D.W.V.court held that an employee who believed that using the employer’s biometric scanner would violate his religious beliefs should be accommodated because there was already an accommodation for those who could not use a hand scanner.

In the most recent reporting year, 45% of EEOC charges alleged retaliation, 34.7% alleged race discrimination, 30.2% alleged disability discrimination and 29% alleged sex discrimination.

Cybersecurity: On February 16, 2016, DHS issued guidance under the Cybersecurity Information Sharing Act (CISA), a statute which grants new legal authorizations and protections for sharing cyberthreat indicators and defensive measures between and within the private sector and government. Companies have to redact personal information which is not relevant to the threat before sharing information about the threat. If companies share attorney-client privileged information, the privilege is preserved.

FLSA: In Colello v. Bottomline Tech., the D. Me. Court held that a client relations manager who made $89,000/year was nonexempt because her customer care recommendations were disregarded and discouraged.

Disability Discrimination: In Flynn v. Distinctive Care, the Fifth Circuit joined the Ninth & Tenth Circuit to extend protection under the Rehabilitation Act of 1973 to independent contractors.

Workplace Violence: DHS has developed webinars and other training materials for avoiding workplace violence and how to handle active shooters in the workplace.

OSHA: Under new regulations, OSHA 300 forms will be publicly available.

For more information or to get involved with the Policy Committee, contact,,
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NLRB Subcommittee
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In Veolia Transp. Servs., 363 NLRB No. 98 (1/20/16), the Board held that road supervisors who monitor and counsel bus systems workers lacked the authority to impose or recommend discipline and, thus, were not supervisors within the meaning of the NLRA.

The employer in Browning Ferris Indus. of Calif, Inc., has filed an appeal with the DC Circuit seeking review of the NLRB’s joint employer decision. According to filings by Browning-Ferris, the NLRB decision is contrary to the public policy of the NLRA and “arbitrary & capricious” under the Administrative Procedure Act.

In Guardsmark, LLC, the NLRB changed its rule concerning “mass campaign meetings” or “captive audience meetings,” saying that such meetings must end more than 24 hours before the mailing of the ballots for an NLRB election. Prior to this, the rule for the last 50 years has been that the captive audience meetings could not occur starting when the ballots were mailed.

The Department of Labor is issuing new “persuader rules” which will require employers who use labor relations consultants, including lawyers, to help with union-avoidance or collective bargaining activities to disclose more of these activities and the fees paid for them.

In Ralph’s Grocery Co., 363 NLRB No. 128 (2/23/16), the Board held that an employer violated the NLRA by maintaining and enforcing a mandatory arbitration policy that included, as a condition of employment, a class and collective action waiver, even though the policy included a sentence noting the employee’s right to file charges with the NLRB.

In Blommer Chocolate Co. of California, LLC, (2/17/16), the NLRB set aside an election which the union lost on the grounds that the employer maintained overbroad work rules. The challenged work rules (1) prohibited employees from disclosing employee lists for confidentiality reasons; (2) allowed employees to use work computers for personal use but prohibited them from expressing personal opinions; and (3) prohibited employee use of the company name and logo.

According to the NLRB’s quarterly representation case statistics, although the new accelerated election rules have resulted in a 37% reduction in the time between petition and election (from 34 to 24 days), the union win rates were also down 1% to 64%.

For more information or to join the NLRB subcommittee contact
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ERISA Subcommittee

In Montanile v. Nat’l Elev. Indus., the US Supreme Court examined the right of subrogation and reimbursement. It held that the plan seeking reimbursement for medical expenses paid after a participant received a settlement related to the incident, which caused the injury, was unable to make such recovery through a lien on the participant’s general assets. According to the court, if the monies attributable to the settlement were in traceable assets or were still in the possession of the participant, then the plan may have had a right to recovery.

The HHS has published a Consumer Fact Sheet related to Mental Health & Substance Use Disorder Parity of Benefits.

For more information or to join the ERISA subcommittee contact or
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