file101235857424For the last six years, you haven’t seen much on this blog about changes to federal employment laws because, well, there just weren’t any.  What we DID see, however, were changes to regulations and enforcement orders.

Nearly six months into the new Trump administration, we’re now starting to see significant shifts in the federal regulatory scheme too.

A lot of national employment law blogs have been starting to recap them so I’m not going to go too in depth here. Among the changes? A death-knell to the persuader rule, and, earlier this month, a pullback of guidance on joint employment and independent contractor rules.   And it looks like the overtime rule changes are still in limbo as well, with the DOL “rethinking” such rules in news articles this week.

You don’t need to have a law degree to understand that these changes will favor companies.

Last night too, the Trump administration named the final member of a new National Labor Relations Board who will, no doubt, start rolling back other labor law decisions that have favored employees and labor unions as well.

But what will the impact be in Connecticut?

It’s still a bit early to tell, but I think the impact may be muted in some ways. After all, we have a CONNECTICUT Department of Labor that still marches to its own drum.  For example, it has taken a pretty aggressive view on who is (or is not) an employee vs. an independent contractor.

Indeed, as I’ve discussed before, the Obama-era rule changes might have, in fact, helped level the playing field for some Connecticut employers who have felt that they have had to comply with stricter Connecticut rules which made them less competitive nationwide.  With the rollback of some of these rules at the federal level, Connecticut’s higher standards may come back into play more often.

That may be overstating it a bit, but Connecticut employers will have to play catchup to figure out the patchwork of federal and state regulations and the interplay between them.

Perhaps it is more fair to say that things are still shaking out this year for Connecticut employers.  The General Assembly session that just ended was more quiet than most.  But at a national level, employers shouldn’t be too quick to make too many changes because there seems to be many more aspects in flux than in years past.

The only thing I’ll predict for the next six months is that we have all the ingredients in place for a wild roller coaster ride with more changes than we’ve seen in some time.

So buckle up.   Things are just getting interesting.

yankees3With Opening Day of baseball season nearly upon us, it’s time again to bring back a “Quick Hits” segment to recap a few noteworthy (but not completely post-worthy) employment law items you might have missed recently.

  • The U.S. Department of Labor released the final version of new “persuader” rules which will become effective April 25, 2016.  The new rules revise the “advice” exemption and will require a larger universe of consultants, lawfirms, and employers to report their labor relations advice and services.  You can find many recaps of the new rule (here and here, for example).  For Connecticut employers, if you haven’t had to worry about “persuader” reporting before (and don’t know what it is), it’s not likely to change things much, though for law firms and consultants, it may have a more significant impact.
  • Not every U.S. Supreme Court case is a big one.  The latest example of that is the Tyson Foods, Inc. v. Bouaphakeo et al. case that was issued last week. In that case, the court ruled that employees could use representative evidence to establish liability and damages for class certification purposes in a donning and doffing case. As another blog post stated sufficiently, this decision allowed employees to rely on a “time study conducted on a sample of class members to calculate an average donning/doffing time, which is then extrapolated to each member of the class — even if the actual time spent on the activity in question varies dramatically among employees and even if some of the class members failed to prove damages at all based on that time study.”  For most employers, however, the decision will have limited utility. Donning and doffing cases are, for example, fairly rare.
  • An interesting case up for oral argument at the U.S. Supreme Court today looks at the limited circumstances in which an employer can recover attorneys’ fees as a “prevailing party” in a Title VII suit.  The SCOTUSBlog has more on this case here.
  • Tax season has renewed fears regarding the privacy of W-2 forms.  A spear-phising e-mail scheme has been making the rounds of late, as this post reminds us.

 

You might wonder why certain employers aren’t unionized.  There are many factors, of course, but one of them is a keen awareness by the employer of the risks that are out there.

Target is one of those employers.

Earlier this week, Gawker acquired one of the videos that Target uses to educate its workforce on what it thinks about unionization.  It’s pretty slick.

There are many aspects to the video that show its sophistication in today’s workforce.  For example, it highlights the benefits of its own open door policy while also suggesting that if a union were to come in, it may have to change.

Indeed, if you watch the video, there are a lot of “mays” in it.  Why? Because the company — like all other companies that engage in such strong union avoidance strategies — wants to be sure that its messages don’t run afoul of the strict rules enforced by the NLRB.  By suggesting that some things might happen if a union comes in, the company plants the seed of something happening without committing to it.

Jon Hyman at the Ohio Employer’s Law Blog (who tipped me off to this), has accurately noted that while the video is nice, your company doesn’t need something similar. He suggests that “TEAM approach to union avoidance:

  • Train supervisors
  • Educate employees
  • Accessibility
  • Modernize policies

As Jon goes on to note, “understanding that union avoidance starts as soon as an employee walks in your door about applying for a job, and not as soon as a labor union approaches your employees about signing authorization cards, is the first step in honing the right strategy that will keep your company union free.”

If you are wondering if this approach is right for your company, be sure to consult with your preferred counsel who has experience in both union and non-union work environments.

And if you want to watch the 2011 version of the same video (the sound may be an issue), check out the video below.

The American Bar Association submitted a letter today to the U.S. Department of Labor to express its “serious concerns” over a proposed rule that would “substantially narrow” the longstanding interpretation of what lawyer activities constitute “advice” to employer clients.

Currently, most work from attorneys is exempt from the substantial reporting requirements in federal law that require “persuaders” (or, for ease of understanding, those brought in during a union campaign to help persuade employees to vote against unionization) to report their activities.

You can download the entire letter here.

The ABA’s position here is important because on many labor & employment matters, it abstains because there is typically not a consensus between management-side and employee-side attorneys.  This issue, however, touches all attorneys and is necessary, in the ABA’s words , to defend “the confidential client-lawyer relationship” and would impose an “unjustified and intrusive burden on lawyers and law firms and their clients”.

The rule is still in its proposed stage, but the ABA’s input here could be quite important for another reason as well.  The ABA’s involvement in the “red flag” rules was crucial to getting that rule overturned. Time will tell if the ABA’s involvement here will have a similar impact.

Seth Borden of Labor Relations Today had a good recap of these proposed rules back in July.