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How times change. In 2017, a foul-mouthed advocate of purported employee rights delighted in outing on Facebook his boss—a hard-driving banquet manager who clearly didn’t get the whole employee-relations thing—as a “nasty mother****er.” (To make his disdain inescapably clear, he also posted something about the boss’s mom.) Seldom given the opportunity to blog about something so lurid, we delighted in reprinting the post in full [note: not appropriate for children]:

Continue Reading Thanks for the Clarification: NLRB Says No, You Cannot Ordinarily Throw the F-Bomb At Your Boss

Law360 (July 15, 2020, 4:21 PM EDT) — The coronavirus has been novel in more ways than one. On one end of the spectrum, employers confront new questions of almost philosophical dimensions.

How much risk is too much risk? What risks should we ask our employees to accept? Where is the line between ordinary risk

This week, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the National Labor Relations Board overruled a 2016 decision, and held that an employer does not have a duty to bargain over employee discipline with a union prior to reaching a first collective bargaining agreement.

U.S. employers are now in the thick of bringing employees back to physical offices, facilities and plants. Some of the myriad issues they must address are pure HR: how to deal with employee fears, for example, or how to figure out if an employee who is immunocompromised is entitled to telework as a form of disability accommodation. Some of the issues, however, are far more basic but at the least as important: how do we ensure physical safety? Happily, the Occupational Safety and Health Administration (“OSHA”)—initially criticized for failing to provide definitive guidance on maintaining a safe workplace in a COVID world—has issued guidance on the use of “face coverings” (yes, masks) in the workplace.  This post summarizes the key takeaways from OSHA’s guidance.

Continue Reading OSHA Issues Guidance Regarding Face Coverings In The Workplace

The battle between a now pro-employer NLRB and labor unions continues. In the latest skirmish, the NLRB has announced its new election rule (which repeals Obama-era “quickie” election rules) will take immediate effect to the extent that a federal court has not struck provisions of the rule down.

The Obama NLRB issued rules for expedited union elections (disparagingly referred to by management-side opponents as “quickie election” rules) in 2014. Those rules deprived employers resisting unionization of many of the tools they had used for years to delay elections and vote counts, and to challenge election results they didn’t like. That all changed, unsurprisingly, with a Trump NLRB—but the NLRB’s own rulemaking process seemed pretty “quickie” itself, which became exactly the thing that labor unions challenged.


Continue Reading NLRB Elects to Implement Procedural Changes to Obama-Era Election Rules

First Up: DOL Expands Overtime Exemption for Commission-based Retail and Service Workers

We all know that retail has been hit hard by the pandemic. When retail employees paid on a commission basis do go back to work, fewer of them will qualify for overtime, thanks to a Department of Labor (DOL) rule promulgated on Monday, May 18, 2020. While this sounds like a bad deal for employees, there’s a silver lining: the DOL issued another rule just today that will make compensating employees for staggered shifts and fluctuating workweeks easier—practices that are likely going to be critical components of a safe COVID-19 return-to-work plan in retail.

Monday’s final rule withdraws 60-year-old interpretive rules that limited employers’ ability to invoke Section 7(i) of the FLSA, which exempts certain commission-based employees in “retail or service establishments” from overtime eligibility. To qualify for the exemption, a business needs to show: (i) it is a retail or service establishment, as defined by the regulations; (ii) the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked; and (iii) more than half the employee’s total earnings in a representative period must consist of commissions.


Continue Reading DOL Adopts Two Significant Changes to “Modernize” Overtime

Employers, as you plan for a safe return to work, there are several critical protocols and practices to consider. Below you will find a Return to Work (RTW) Checklist, created by the Kelley Drye Labor and Employment team, to help you navigate getting back to work effectively. If you have any questions or need more information, please contact Barbara Hoey and Mark Konkel.

Continue Reading Employer’s Return to Work Checklist: Practices and Policies

A recent ruling by the U.S. Department of Labor (DOL) signals the start of the forecasted avalanche of government claims and civil litigation arising from the COVID-19 pandemic and related emergency legislation.  Investigators from the DOL’s Wage and Hour Division (WHD) found that the employer Discount Tire Centers failed to pay its employee paid sick

Although the U.S. is still in the thick of the COVID-19 crisis, this is exactly when employers who are deemed “non-essential” should be developing a careful, considered plan to bring their workforces back. Employers face a multitude of challenges in the planning process, including: (1) determining when and who comes back; (2) parting ways with employees with whom the business can no longer support or need; (3) sidestepping lawsuits that could otherwise arise after employee terminations; and (4) balancing employees’ legitimate concerns for themselves and their families’ with an increasingly imperative need to get your business up and running again.

This post briefly addresses issues employers should consider when bringing employees back. For a deeper dive of the issues covered in this post and more, check out a recording of Kelley Drye’s Part 1: Getting Back To Work: Preparations and Considerations for Employers webinar, and register for Part 2: Getting Back To Work: When the Rubber Hits the Road. Part 2 is scheduled for April 30, 2020 at 12:30 PM ET, click here to register.


Continue Reading COVID-19 and Returning to Work: For Employers, It’s Not Too Soon to Plan a Comeback

Last week, the FDA approved the use of telethermographic systems (essentially, heat-sensitive cameras) to detect human temperature during the COVID-19 public health emergency. The cameras can measure individuals’ temperatures in comparison to their surroundings to help identify fevers.

Companies considering using these devices should review the article, Finding Fevers: FDA Relaxes Rules On Temperature-Detecting Cameras, written by Kelley Drye partner, Kristi Wolff and consider the associated employment and privacy issues.   


Continue Reading Finding Fevers: Considerations Before Using Temperature-Detecting Cameras