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January 2020

HERE'S YOUR HOLIDAY BONUS: NEW DOL RULES CLARIFY WHEN PAYMENTS MAY BE EXCLUDED FROM THE REGULAR RATE

| January 2020
In the first update to these regulations in 50 years, the Department of Labor on December 18, 2019 published a Final Rule clarifying when payments - such as year-end bonuses - must be included in an employee's "regular rate" (i.e., pay divided by hours worked) for purposes of calculating overtime.  The new rules take effect January 15, 2020.
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NLRB APPROVES McDONALD'S SETTLEMENTS THUS DISALLOWING JOINT EMPLOYER

| January 2020
The joint employment issue is high on the agenda of the main employment agencies, including the NLRB, the Department of Labor (DOL) and the EEOC.  While the joint employment issue has been litigated in a variety of forums, perhaps the most publicized forum was the NLRB case involving McDonald's, in which the Obama-era NLRB General Counsel contended t...
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NLRB RULING PROVIDES GREATER CONFIDENTIALITY IN WORKPLACE INVESTIGATIONS

| January 2020
Another December ruling dealt with workplace investigations, and the issue whether an employer can have work rules requiring confidentiality during the course of such investigations.  Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144.  The Obama-era NLRB issued a decision requiring employers to prove, on a case-by-case basis, that th...
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EMPLOYERS MAY DISCONTINUE UNION CHECK-OFF ON CONTRACT EXPIRATION

| January 2020
The NLRB also ruled in December that an employer's statutory obligation to check-off union dues ends upon the expiration of the collective bargaining agreement containing the check-off provision.  Valley Hospital Medical Center, Inc., 368 NLRB No. 139.  The decision overturned an Obama-era ruling and returned the NLRB to the rule existing for ov...
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EMPLOYERS MAY AGAIN RESTRICT USE OF THEIR EMAIL SYSTEM

| January 2020
The NLRB has re-established the right of an employer to restrict employee use of its email system if it does so on a non-discriminatory basis.  Caesars Entertainment, Inc., 368 NLRB No. 143.  This case reversed an Obama-era ruling that employees given access to the employer's email system had a presumptive right to use that system, on non-workin...
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NLRB CHANGES QUICKIE ELECTION PROCEDURES

| January 2020
One of the most debated, publicized, and contentious issues in employment law in recent years has been the NLRB "quickie election" rule, which only allowed 20 days or so between the filing of the union election petition and the election itself.  Unions felt that shortening the time period for an election would increase their chances of success, while...
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END OF DEMOCRAT'S TERM ON LABOR BOARD TRIGGERS LARGE NUMBER OF PRO-MANAGEMENT RULINGS

| January 2020
The sole Democratic member of the National Labor Relations Board (NLRB), Lauren McFerran, reached the end of her term on December 16, 2019.  Traditionally, the departure of a Board member triggers large numbers of rulings, particularly if the case has overturned existing precedent and so a new member does not have to start all over in reviewing the p...
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