ACC Employment and Labor Committee March Newsletter
IN THIS ISSUE...
Message from the ELLC Chair  
Upcoming Events  
Recent Presentations and Webcasts  
Policy Subcommittee  
Labor Subcommittee  
Next Bi-Monthly Newsletter Deadline  
Networks
Virtual Library
Renew Your Membership
Update Your Records
Upcoming ACC Programs
Search Back Issues

Webcasts
Updates From ACC Committees

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 Booden).

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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Upcoming Events

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
Code: 2771634930

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:

· Thursday, 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.  

· Wednesday, 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.   

Wednesday, January 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.  

Ms. Maurer can be contacted at tracie.maurer@jacksonlewis.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.  

Presented by 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[1].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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Policy Subcommittee

  1. 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 and welfare, 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.   

  1. DOL Requests Delay in Appeal of Overtime Rule Jurisdiction

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.)

  1. 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.

  1. 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 9, 2017.

  1. 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 alice.e.conway@monsanto.com, Gregory Watchman at Gregory.watchman@freddiemac.com, or Colleen Higgins Schultz at cschultz@ti.com
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Labor Subcommittee

1.    NLRB

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 trade deals.

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),

and Murphy 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 Cir.).


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.uffelmann@anheuser-busch.com, or Michah Heilbrun at micah.s.heilbrun@exxonmobil.com.   
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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 mtorrez@trueblue.com.
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