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Top labor and employment developments in February 2018

March 10th, 2018  |  Joy Waltemath

By Joy P. Waltemath, J.D.

In case you missed Employment Law Daily’s in-depth coverage, here’s a recap of some of the key developments in the L&E community for the short month of February 2018. Below are highlights, but you can access the full recap here:

At the Supreme Court

  • Janus argument reveals deep split among Justices. Will public-sector unions will be permitted to collect so-called “agency” or “fair-share” fees going forward?
  • SCOTUS denies Dodd-Frank protections to internal whistleblowers. Only whistleblowers who report to the SEC are protected against employment retaliation under Dodd-Frank, the U.S. Supreme Court unanimously ruled.
  • Yard-Man inferences can’t create ambiguity in CBA to find lifetime health benefits vesting. Responding to a certiorari petition, the Supreme Court reversed and remanded a Sixth Circuit decision that had held that the same Yard-Man inferences it once used to presume lifetime vesting of retiree health benefits could be used “to render a collective bargaining agreement ambiguous … allowing courts to consult extrinsic evidence about lifetime vesting.”
  • Justices take a pass on DACA injunction for now. The Supreme Court has declined the Trump Administration’s invitation to weigh in on its now-blocked revocation of the Deferred Action for Childhood Arrival (DACA) program before a final judgment.
  • Nationwide travel ban injunction to stand pending SCOTUS review. Dealing the latest blow to the Trump administration’s efforts to impose a travel ban, primarily on Muslim-majority countries, a divided en banc Fourth Circuit upheld a district court’s order imposing a nationwide preliminary injunction on the administration’s third iteration of the ban.”

At the DOL:

  • Amid proposed rescission, DOL again seeks more time on tip pool petition. The Department of Labor is seeking its seventh extension of time to file its response to the National Restaurant Association’s petition for certiorari, challenging a divided Ninth Circuit decision finding that the agency had acted within its authority when it promulgated the 2011 changes to its tip pool regulation. The DOL, meanwhile, had already published its new proposed rule that would allow employers to utilize mandatory tip-pools that include employees who do not traditionally receive direct tips (it would apply) only to employers that pay a full minimum wage and do not take a tip credit. If a tip credit is taken, then the sharing of tips between tipped and non-tipped employees is still prohibited. A firestorm erupted (and shows no signs of waning) when Bloomberg Law reported that the DOL purportedly intentionally omitted key data from its new rulemaking on tip pools.
  • Full Ninth Circuit to revisit DOL’s interpretation in dual jobs tip credit case. The Ninth Circuit has agreed to revisit the contentions of former servers and bartenders in a consolidated appeal that their employers improperly claimed the tip credit and failed to pay the required minimum wage.

In NLRB news:

  • Because Emanuel should have recused himself, NLRB vacates Hy-Brand. On February 26, the NLRB vacated its decision in Hy-Brand Industrial Contractors, Ltd., in which a 3-2 Board overturned the agency’s controversial “joint employer” ruling in Browning-Ferris Industries. The move came after the NLRB inspector general determined that new Board member William Emanuel was disqualified from participating in the case and should have recused himself from the proceeding.
  • Division of Advice finds no NLRA breach in high-profile Google firing. The NLRB General Counsel’s Division of Advice released an advice memorandum on February 15 regarding the much-publicized discharge of a Google software engineer following his invective about women in tech. In Google, Inc., the Division of Advice concluded that a Google software engineer was not engaged in protected activity when he wrote a memo questioning the tech giant’s diversity and inclusion initiatives.
  • NLRB soliciting briefs on whether misclassifying employees as independent contractors violates Section 8.

EEOC News

  • EEOC’s criminal background check guidance a substantive rule, APA notice-and-comment procedures apply. The Northern District of Texas denied a request from the state of Texas for a declaration that the state has the right to impose a categorical ban on hiring individuals with criminal felony convictions for certain state jobs. But it barred the EEOC from enforcing the guidance against the state of Texas until the Commission complies with the APA’s notice and comment rulemaking requirements.
  • EEOC ‘regarded as’ disability claims fail for therapist fired over concern she might contract Ebola. Declining to expand the ADA’s “regarded as” disabled definition to cover cases in which an employer perceives an employee to be presently healthy, with only the potential to become disabled in the future due to voluntary conduct, a federal court for the Middle District of Florida dismissed the EEOC’s claim that the employer unlawfully fired a massage therapist days before her trip to Ghana because she might become infected with Ebola.

In the Courts of Appeals

  • First Circuit: OSHA properly held general contractor liable for sole proprietor subcontractor’s safety breach
  • Second Circuit, en banc, says sexual orientation discrimination is ‘because of’ sex under Title VII
  • Sixth Circuit: Telecommuting for 10 weeks was reasonable accommodation for in-house attorney
  • Seventh Circuit: Jewish day school teacher was ministerial employee
  • Ninth Circuit: Officer’s claim she was terminated in part for extramarital affair revived
  • Tenth Circuit: Forced labor claims by immigration detainees may proceed as class