Message from the ELLC Chair
Welcome to the latest issue of the Employment and Labor Law’s
bi-monthly newsletter. Our
Communications subcommittee, co-chaired by Jennifer Harper and Monica
Torrez-Pfister, does a great job of providing quality information to ELLC
members through the newsletter.
I am pleased to announce that we have a new subcommittee –
the Absence and Disability Management subcommittee – which is the brainchild of
ELLC member Marjory Robertson. The
subcommittee’s goal is to share information about developments
and requirements in the area of leaves of absence and workplace
accommodations. Marjory’s co-chairs are
Marti Cardi and Megan Holstein. Managing
absences under the FMLA and ADA, and accommodating employee medical conditions,
are some of the most difficult challenges that companies face today. The Absence and Disability Management
subcommittee will help us to navigate these complicated issues through updates
during our monthly calls, timely webcasts and other programs.
Finally, our Programs
subcommittee has been busy getting approval for the employment law programs
track for the ACC’s Annual Meeting, and now is turning its attention to
securing speakers for the programs. We
have a great lineup of programs this year. We need presenters for the “Ask Chairman Pearce” and “Ethical Challenges
for Labor and Employment Lawyers” programs. If you are interested in volunteering as a speaker for a program, feel
free to contact one of the co-chairs (Jennifer Deitloff, Rachel Barack, Eric de los Santos or Michael
Do not forget to join our monthly calls, which are the first
Wednesday of each month at 3:00 ET.
Log-in information is available on the ELLC’s ACC web page (https://www.acc.com/committees/ellc/).
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Wednesday, March 1, 2017 at 3:00 PM EST.
Legal Quick Hit: OSHA is Placing More Emphasis
on Recordkeeping – Quick Tips for Being Prepared.
Join us on our
monthly committee call as Jackson Lewis takes us through recent changes made by
OSHA related to OSHA 300 logs, and OSHA’s renewed emphasis on recordkeeping
which could create liability for companies not in compliance. This week’s Legal Quick Hit will provide a
number of quick tips to help ensure your company is ready for an OSHA review of
your logs. This Legal Quick Hit will be
presented by Carla Gunnin, a principal in Jackson Lewis’ Atlanta Office and
Co-Leader of the firm’s Workplace Safety and Health practice group. Carla’s practice primarily focuses on occupational
safety and health issues.
To participate on the call:
Toll free dial-in: 1-877-647-3411
Click here to register.
All members are welcome on the ELLC’s monthly committee calls. Come join us!
The ELLC’s monthly
committee calls are open to everyone and we welcome your participation. We often discuss hot topics in employment and
labor law and provide the latest in legal developments, allowing you to get an
in-depth look at what’s happening at the local, national and international
levels, and offering valuable dialogue on managing business and legal issues
that we often face in our roles as employment and labor counsel. For more information about the ELLC’s monthly
committee calls, go to https://www.acc.com/committees/ellc/index.cfm
Other upcoming ELLC Legal Quick Hits and Events are:
March 2, 2017, 2:00 PM ET, 7:00 PM GMT – Webcast on He/She/They/Hir/Ze: Navigating Gender Identity,
Misgendering and Transitioning in the Workplace. Sponsor: Jackson Lewis P.C. Free to view without CLE/CPD. For CLE/CPD credit only: $40 for members,
$80 for nonmembers.
April 5, 2017, 3:00 PM ET, 8:00 PM GMT – Legal Quit Hit on The Changing Landscape for Class Action
Litigation Under the Fair Credit Reporting Act in the Wake of Spokeo v.
Robins. Sponsor: Jackson Lewis P.C. Toll Free Dial-In: 1-877-647-3411 Code: 2771634930
For further details on these ELLC Legal Quick Hits and
Events see: https://www.acc.com/committees/ellc/events/
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Recent Presentations and Webcasts
The 2017 ELLC Committee Meetings kicked off with relevant and informative
Legal Quick Hits and content in the January and February conference calls.
4, 2017 – Employment and Labor Law Year in Review – A Look Back at 2016 and
What’s Trending for 2017.
Presented by Tracie
Maurer, a principal in Jackson Lewis’ Atlanta office, January’s Legal Hit
reviewed the five most notable labor and employment developments in 2016 and
looked ahead to the five anticipated trends for 2017, including key
developments regarding severance agreements, paid sick leave, as well as what
to expect from the National Labor Relations Board, Equal Employment Opportunity
Commission and the U.S. Department of Labor, and the impact of the presidential
election on workplace law.
To review this
presentation in further detail, the slides can be accessed at: http://webcasts.acc.com/detail.php?id=578757&go=1&_ga=1.181259239.118478834.1461249917.
can be contacted at email@example.com or 404-586-1873.
Wednesday, February 1, 2017 Legal Quick Hit – A Setback for
the EEOC: Appellate Court Holds that ADA
Does Not Require Reassignment Without Competition.
Tasos Paindiris, a principal in Jackson Lewis’ Orlando office, this Legal Hit
reviewed a recent court opinion challenging the EEOC’s aggressive pursuit of
its position that the ADA requires an employer to reassign an employee to an
available position without having to compete with other candidates for that
position. In a case that went up to the
11th Circuit, EEOC v. St Joseph’s
Hospital, 11th Circuit (Dec. 7, 2016), the Court recognized that reassignment
to a vacant position is a potential accommodation that may be reasonable in
some circumstances, but held that the ADA does not require reassignment without
competition or preferential treatment of the individual alleging a disability
with respect to choosing the best qualified candidate for the position. Mr. Paindiris reviewed the current state of
the law on this important issue relating to ADA compliance and gave practical
guidance on dealing with these types of accommodation scenarios.
To learn more, check out the presentation slides at: http://webcasts.acc.com/handouts/ACA_Quick_Hit_-_ADA_Reassignment_as_an_Accommodation_Paindiris.pdf and the link is also live on the ELLC committee web
page at ACC.com.
Mr. Paindiris can be
contacted at tasos.paindiris@Jacksonlewis.com.
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- President Trump Signs Executive Order Suspending Entry
to the United States for Foreign Nationals From Seven Countries
On January 27, 2017,
President Trump signed a controversial executive order temporarily halting entry to the U.S. for
foreign nationals from Syria, Iran, Libya, Somalia, Yemen, Iraq and Sudan for at least 90 days.
The executive order additionally suspended the U.S. Refugee Admissions Program for a minimum
of 120 days, and suspended admission of Syrian refugees indefinitely. As written, with very limited exceptions, the order applies
to all nationals from these countries, and initially, lawful permanent
residents were prevented from entering the United States. On January 29, Homeland
Security Secretary John Kelly published a clarifying statement indicating that “absent
significant derogatory information indicating a serious threat to public safety
lawful permanent resident status will be a dispositive factor” in case-by-case determinations to
determine admission to the U.S. Multiple lawsuits have been filed challenging the executive order,
and while some aspects of the order have been temporarily enjoined, Customs and
Border Patrol continue to enforce the travel ban and airlines continue to
withhold boarding passes to affected individuals.
There have been
additional significant developments since the Policy Committee reported on this
topic at the February 1, 2017 conference call, including on February 9, 2017, a
three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a
Federal District Court judge’s decision (TRO) to temporarily block the
Executive Order. This topic will likely
be further reported on at the March 2017 ELLC conference call.
- DOL Requests Delay in Appeal of Overtime Rule
After a Texas judge issued a nationwide injunction last November preventing the revised overtime regulations from taking effect,
the Department of Labor filed an interlocutory appeal to the Fifth
Circuit Court of Appeals and originally requested an expedited briefing
schedule. Following the change
in administration, on January 25, the Justice
Department filed an unopposed motion requesting a 30-day extension of its deadline
to file a reply brief
so that the Trump administration can determine whether
to defend the rule. A motion filed by the Texas
AFL-CIO to intervene in the lawsuit
as an additional party defendant remains pending before
the trial court, in case the DOL chooses to drop its appeal or defense of the overtime
lawsuit. Nevada v. DOL,
No. 16-41606 (5th Cir.)
- White House Vows to Enforce LGBT Executive Order
On January 31, the White House issued
a press release
indicating that the President would continue to enforce Executive
Order 13672, which prohibits federal
contractors from discriminating on the basis of sexual orientation and gender identity.
The release stated that the executive order
would “remain intact”
at the direction of the president, and said that President Trump continues to be “supportive of LGTBQ rights.”
The press release
was issued following speculation that the executive order would be rescinded after Press Secretary
Sean Spicer said last week that he did not know whether
it would be repealed.
- EEOC Issues Proposed Enforcement Guidance on Harassment
On January 10, the Equal Employment Opportunity Commission issued
Proposed Enforcement Guidance on Unlawful Harassment. The guidance is meant to address harassment under Title VII, the Age Discrimination in Employment Act, the Americans
with Disabilities Act, and the Genetic Information Nondiscrimination Act. The 75-page document
contains numerous examples from case law of the type of conduct and statements that the EEOC believes constitute prohibited harassment. The guidance contains
a helpful “promising practices” section, with recommended methods to prevent
and correct harassment, such as enumerating the ten elements that the EEOC believes
should be included
in an effective anti-harassment policy.
While the guidance
was issued prior to the change in administration, Victoria
Lipnic, who was appointed as acting
chair of the EEOC by President Trump on January
25, previously co-chaired the commission’s Harassment Task Force, and has indicated
she approves of the guidance. The deadline for submission of comments on the proposed
guidance was February
- Ninth Circuit Finds Including Waiver in FCRA Disclosure
Constitutes Willful Violation
On January 20, 2017, the Ninth Circuit
Court of Appeals
became the first federal appellate
court to consider the impact of including extraneous information in an FCRA disclosure as well as the
standing requirements to file an FCRA claim.
In the Syed case, the plaintiff received
a background check disclosure form which notified
him that a background check would be obtained for employment purposes,
but also included
a liability waiver.
Syed brought a class
action lawsuit alleging
that the inclusion of the waiver
made the disclosure noncompliant, and that the violation was willful, making
both statutory and punitive damages
available. The Ninth Circuit held that in light of the clear statutory language
in the FCRA that a disclosure must consist “solely”
of the disclosure, the inclusion of the waiver
was a willful violation of the FCRA. It additionally held that the improper disclosure was more than a bare procedural violation,
causing sufficient harm to establish
standing to bring an FCRA claim. The court remanded the class action suit back to the district
court for further
proceedings. Syed v. M-I, No. 14-17186 (9th Cir. 2017)
6. OFCCP Renews Voluntary
Self-Identification of Disability Form
On January 31, 2017, the Office of Federal Contract
Compliance Programs announced
that the Office of Management and Budget renewed
its Voluntary Self-Identification of Disability form (CC-305) for three years. While the content of the form has not changed, the updated form has
an expiration date of 1/31/2020, and should be used immediately. The OFFCCP instructs
that federal contractors must either download
the updated form or update
their electronic version
of the form to show the new expiration date.
Special thanks to Colleen Higgins who presented these recent
legal developments at the ELLC February conference call. For more information or to
get involved with the Policy Committee, contact Alice Conway at firstname.lastname@example.org, Gregory Watchman at Gregory.email@example.com, or Colleen Higgins Schultz at firstname.lastname@example.org.
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President Trump appointed Republican Philip Miscimarra as acting Chairman
of the NLRB. Miscimarra replaces Democrat Mark Gaston Pearce,
whose term expires August 2018. Miscimarra’s term expires in December 2017.
Miscimarra’s dissents in cases
lay the foundation for future
potential changes toward more employer-friendly Board rulings.
Trump is expected
to nominate Republicans to fill the two current vacancies on the 5 member Board,
creating a 3-2 Republican majority.
On January 23rd, President Trump
met with several
union leaders surrounding actions on nation’s
2. Joint Employer
Oral argument on Browning-Ferris Industries of California, Inc.’s appeal seeking to overturn the National Labor Relations Board’s
landmark joint employer decision, Browning-Ferris Industries of California, Inc.,
362 NLRB No. 186
(Aug. 27, 2015), has been scheduled for March 9, 2017, by the U.S. Court of Appeals for the
District of Columbia
Circuit. The Browning-Ferris decision established a new, union-friendly standard
for determining joint employer status
under the NLRA.
Under the Board’s former
standard, a joint employer relationship existed only where
“two separate entities share
or codetermine those
matters governing the essential terms and
conditions of employment.”
3. Class Actions Waiver
The U.S. Supreme Court has agreed to decide
whether class action waivers
in employment arbitration agreements violate the National Labor Relations Act (“NLRA”). The Supreme Court’s
action promises the much-anticipated
resolution of the circuit split
on the issue. The Court
on January 13, 2017,granted certiorari in National Labor Relations Board
v. Murphy Oil USA (No.
16-307), Epic Systems
Corp. v. Lewis (No. 16-285),
and Ernst & Young LLP v. Morris(No. 16-300), consolidating them for oral argument. Arbitration agreements that require employees to pursue claims in arbitration, rather than in court, have long been enforced
pursuant to the Federal Arbitration Act (“FAA”). Due to a series of Supreme Court decisions, employers
increasingly have included
class and collective action waivers in such
agreements. However, the National Labor
Relations Board (“NLRB”)
has taken the position that employers violate
the NLRA when they make such waivers
in arbitration agreements a condition of employment. Disagreeing
with the NLRB, in D.R.
Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013),
Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), the U.S. Court of
Appeals for the Fifth Circuit
generally held class and collective action waivers do not violate the NLRA. Since then, the Second
and Eighth Circuits
have followed the Fifth
Circuit and enforced arbitration agreements requiring employees to submit their employment claims to individual arbitration. On May 26, 2016, the Seventh
Circuit created a circuit
split. In Lewis
v. Epic Systems
Corp., 823 F.3d 1147 (7th Cir. 2016), the
Seventh Circuit held arbitration agreements that prohibit employees
from bringing or participating in class or collective actions
violate the NLRA. More recently,
in Morris v. Ernst
& Young, No. 13-16599, 2016 U.S.
App. LEXIS 15638 (9th Cir. Aug. 22, 2016), the Ninth Circuit agreed
with the Seventh
Circuit and the NLRB. The NLRB's Office of The General Counsel,
Division of Operations-Management, has issued a memorandum on the impact of the Supreme Court's
January 13 grant of certiorari
in NLRB v. Murphy Oil USA, along with Epic
Systems Corp. v. Lewis (7th
Circuit) and Ernst & Young v. Morris (9th
4. BLS Union Statistics
The union membership rate was 10.7 percent in 2016, down 0.4
percentage point from its rate of 11.1 percent in 2015, according
to the U.S. Bureau of Labor
Statistics. The number
of wage and salary workers
belonging to unions,
at 14.6 million in 2016, declined
by 240,000 from 2015.
Special thanks to Darryl
Uffelmann who presented the
latest in Labor Law developments at the ELLC February conference call. For more information or to join the Labor
Subcommittee contact: Darryl Uffelmann
at Darryl.email@example.com, or Michah Heilbrun at firstname.lastname@example.org.
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Next Bi-Monthly Newsletter Deadline
If you would like to
contribute any specific or additional content to our next bi-monthly
newsletter, please provide your submission for consideration by April 14, 2017 to the
Communications Subcommittee, Jennifer Harper at Jennifer.Harper@dcwater.com, or
Monica Torrez-Pfister at email@example.com.
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