Insights on Labor, Employment & OSHA

Schiff Hardin LLP has been recognized on the BTI Litigation Outlook 2020 Honor Roll in three areas of litigation, including Complex Employment Litigation and Complex Commercial Litigation.

Twenty-five Arent Fox LLP practices have been recognized in the 2020 “Best Law Firms” rankings that are published annually by US News & World Report and Best Lawyers.

Schiff Hardin LLP announced today that the firm has received 45 top-tier rankings and national recognition for its premier practices in the 2020 edition of U.S. News – Best Lawyers® “Best Law Firms.”

Governor Newsom signed AB 51, codified as Labor Code section 432.6, which prohibits California employers from requiring an employee to sign an arbitration agreement “as a condition of employment, continued employment, or the receipt of any employment-related benefit.” 

The Massachusetts Superior Court’s recent decision in Burke v. The General Hospital Corp. et. al., provides critical insight into the limitations of the attorney-client privilege as it applies to investigation reports, and guidance on how to make sure such reports can be protected from discovery.

On October 18, Arent Fox’s New York office will host a one-of-a-kind event on behalf of the New York State Bar Association that focuses on the intersection of FDA and sports law.

On October 7, 2019, United States Supreme Court declined to hear an appeal of a decision by the Ninth Circuit presenting a question of significant importance to business owners engaged in ecommerce.

A federal court in Nebraska recently rejected a health plan’s fiduciary breach claims under the Employee Retirement Income Security Act of 1974 against third-party service providers, holding that the service providers were not ERISA fiduciaries and did not breach fiduciary duties under ERISA.

In the underlying case, OSHA issued citations to Wynnewood Refining Co., LLC related to a steam boiler powered by natural gas at the company’s oil refinery in Wynnewood, Oklahoma.

For the last thirty years, I have defended companies in OSHA enforcement actions. No matter how large or small the action, employers should always begin by evaluating the potential financial impact the OSHA citation could have on the company.

In a much anticipated decision, Judge Allison Burroughs of the US District Court for the District of Massachusetts held this week that Harvard College’s admission’s policy, which considers race among many factors, is lawful.

In a case that should grab the attention of franchisors across the country, a panel of the US Court of Appeals for the Ninth Circuit has ruled that McDonald’s Corporation is not the joint employer of the employees of a California Bay Area franchisee.

WBEZ-FM

The rise in gig economy workers in recent years has led to a steep increase in workers classified as independent contractors.

Yesterday, the U.S. Department of Labor (DOL) released the final version of its anticipated overtime exemption rule, setting a new annual salary threshold for “white collar” exemptions under the Fair Labor Standards Act (FLSA) at just over $35,000 per year.

On September 24, 2019, the Wage and Hour Division of the Department of Labor (DOL) announced a new final rule raising the salary threshold employee compensation must meet in order to qualify for exempt status under the Fair Labor Standards Act (FLSA).

Upending recent precedent, the National Labor Relations Board, yesterday, proposed a rule that, if adopted, will exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services in connection with their college and graduate school studies.

In a 3-1 representation case, the National Labor Relations Board recently continued its roll-back on Obama-era precedents, invalidating a 180-member “micro-unit” of Boeing mechanics.

In resolving a growing split among California courts, the California Supreme Court in ZB, N.A. v. Superior Court faced the issue of whether actions for unpaid wages under Labor Code section 558 brought under the Private Attorneys General Act (“PAGA”) could be compelled to arbitration.

On September 11, 2019, the California Senate passed Assembly Bill 5 (A.B. 5), which – if signed into law – will codify the so-called “ABC Test” utilized by the California Supreme Court in Dynamex v. Superior Court of Los Angeles to hold that the company’s delivery drivers were employees.

Continuing its trend of pro-employer rulings, the NLRB ruled that instead of a “clear and unmistakable waiver” standard, a “contract coverage” standard should apply when considering whether an employer’s unilateral action is permitted by a collective bargaining agreement.

A divided panel of the National Labor Relations Board (NLRB or Board) ruled that the stand-alone misclassification of a worker as an independent contractor instead of an employee does not violate the National Labor Relations Act (NLRA or Act). Velox Express, Inc., Case 15-CA-184006.

In a split decision, the National Labor Relations Board (NLRB or the Board) ruled last week that a property owner that is not in any underlying labor dispute, does not have to grant access to off-duty employees of an onsite contractor to exercise their Section 7 rights, including leafletting.

The National Labor Relations Board recently issued a 113-page Notice of Proposed Rulemaking as the first of a planned series of revisions to its representation procedures under Section 9 of the National Labor Relations Act.  

In its groundbreaking decision in Epic Systems Corp. v. Lewis, 584 US ___, 138 S. Ct. 1612 (2018), the Supreme Court held that the National Labor Relations Act permits employer/employee agreements that contain class- and collective-action waivers and mandate arbitration for employment disputes.