Employment Law

“Ambush Election Rules” or Big Win for Labor Unions? Either Way, Changes May Be in Store for the Union Organizing Process

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With a Notice of Proposed Rulemaking (“NPRM”) issued earlier this month, the National Labor Relations Board’s controversial proposed regulations on union elections are once again making headlines. A near reincarnation of a 2011 proposal that was ultimately struck down, the proposed regulations look to “streamline” the union election process. The changes, however, make some substantive revisions that may negatively impact employers. READ MORE →

Complaint about Foreign Tax Violations Sunk Under SOX

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Whistle

On February 12, 2014, the Fifth Circuit in Villanueva v. U.S. Department of Labor held that an employee did not engage in protected activity under SOX when he reported alleged violations of Columbian tax laws to U.S. executives at his employer. READ MORE →

Bon Voyage! Dodd Frank Whistleblower Claim Shipped to Arbitration

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Whistle

In Murray v. UBS Securities, LLC, Judge Failla in the Southern District of New York compelled arbitration of a Dodd-Frank whistleblower retaliation claim, holding that nothing in the anti-retaliation provision, 15 U.S.C. 78u-6(h), precludes the arbitration of these claims. READ MORE →

Compelling Individual Arbitration Violates National Labor Relations Act? It Does According to ALJ

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People at a Table

Joining the ever growing list of opinions on the arbitrability of class claims, an NLRB Administrative Law Judge recently ruled that an arbitration agreement that did not expressly bar workers from bringing class or collective actions still violated federal labor law because the employer’s steps taken to enforce the agreement in court had the practical effect of doing so. READ MORE →

Strippers and the Fair Labor Standards Act: Lessons for All Employers

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Stack of Money

Late last month, in the Southern District of Florida, adult entertainers at several Rick’s Cabaret locations filed a lawsuit alleging that they were improperly categorized (and thus improperly compensated) as independent contractors rather than employees. See Espinoza, et al. v. Rick’s Cabaret Int’l, Inc., Case No. 1:13-cv-24565-UU. In light of recent decisions, Rick’s—like other employers classifying workers as independent contractors—should proceed with caution.

The past several months have seen a spate of rulings adverse to employers in the adult entertainment context. Early last year, a Southern District of New York judge approved an $8 million settlement for a class of dancers at another adult establishment who alleged that they were misclassified as independent contractors. See In re: Penthouse Executive Club Compensation Litigation, Case No. 1:10-cv-01145. In September 2013, in a different S.D.N.Y. case, the court in Hart, et al. v. Rick’s Cabaret Int’l, Inc. found that dancers at the New York club location were employees, not independent contractors, for purposes of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law. And just last week a Northern District of Georgia judge who previously certified a class of adult entertainers who alleged they were wrongly classified as independent contractors granted the entertainers’ summary judgment motion with respect to their status as employees under the FLSA. See Stevenson, et al. v. The Great American Dream, Inc., No. 1:12-CV-3359-TWT.

In finding no independent contractor relationship in Hart, the court cited the existence of club guidelines that governed dancers’ dress/appearance (e.g., body glitter forbidden, 4-inch stiletto heels required), behavior in the club (e.g., gum chewing or using a cell phone on the dance floor prohibited), when dancers could be scheduled to work, various fees dancers were required to pay, and manner of performance (e.g., prohibition on more than one knee touching the ground when performing on stage). Of virtually no significance was the fact that there were signed agreements between dancers and Rick’s Cabaret expressing that the employment relationship was that of an independent contractor.

Irrespective of industry, companies that utilize independent contractors are well advised to periodically reexamine the economic realities of those relationships.

Post This! Private Employers Not Required to Display Pro-Union NLRB Posters

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The National Labor Relations Board (“NLRB”) recently announced that it would not seek Supreme Court Review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a pro-union notice of employee rights under the National Labor Relations Act on their premises and websites. READ MORE →

Germany: A “Permanent Temp Worker” is not the Lessee’s Employee

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Map and Compass

In Germany, many companies have resorted to utilizing temp workers through a third-party agency instead of hiring their own personnel. Temp workers typically are leased from an agency that employs the temps and assigns them to the company (lessee). This staffing model has increasingly received political criticism and judicial attention. READ MORE →

Court is (Still) in Session: Updates On Three Key Employment Cases Pending Before the United States Supreme Court

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Back on October 8, 2013, we highlighted three cases currently pending on the United States Supreme Court docket that employers will definitely want to follow. The cases address issues ranging from the proper interpretation of Sarbanes Oxley’s whistleblower provision to the breadth of Presidential NLRB appointment power, to what constitutes “changing clothes” under the FLSA.  Although decisions have not yet come down, important developments have taken place in all three cases. READ MORE →

Time’s Up: Supreme Court Upholds Enforcement of Claim Limitations in ERISA Plan Language

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Pen and Calculator

Christmas may have come a little early for plan administrators and companies looking for clarity in ERISA litigation. Last Monday, the U.S. Supreme Court ruled 9-0 in Heimeshoff v. Hartford Life & Accident Insurance Co. that contractual limitations provisions in ERISA plans are enforceable unless the time limitation is unreasonably short or is preempted by statute. READ MORE →

OHSA’s Plan to Air Employers’ Potentially Dirty Laundry Online

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People at a Table

Trying to keep your illness and injury reports low profile? According to new rules proposed by the Occupational Safety and Health Administration (“OSHA”), not under their watch! At an estimated cost of $10.5 million per year to employers, OSHA’s three new proposed rules will impact approximately 480,000 employers by making their injury and illness records publicly available for the first time. See Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67273, 67275 (proposed Nov. 8, 2013) (to be codified at 29 C.F.R. pt. 1904). READ MORE →