NLRB majority shifts with confirmation of William Emanuel

On September 25, 2017, the Senate confirmed on a 49-47 vote the nomination of William Emmanuel to the National Labor Relations Board, creating a Republican-majority Board for the first time since 2007. The current Board-constituency will be short-lived as Chair Miscimarra has announced he will retire when his term expires December 16, 2017. He recently announced a desire to see the Board, before then, begin reversing multiple Obama-era rulings and initiatives. Expect to see an action-packed two and a half months at the NLRB.

Interested in the legal ins and outs of the NFL’s kneeling crisis?

Interested in the legal ins and outs of the NFL’s kneeling crisis. Here’s an article: Bloomberg Law – Document – Fired for Kneeling? Not So Fast, Daily Labor Report (BNA)

Bottom line: It depends on the NFL Player Association’s CBA language. If the NFL wants, yes, they could fire a player (or discipline them), but its CBA (collective bargaining agreement) says, according to this article, that the NFL must prove “personal conduct reasonably judged by Club to adversely affect or reflect on Club.” So far, owners and players have supported kneeling, which makes it difficult (to impossible) to prove it is conduct harmful to a club.

What’s interesting about this article is that the reporter not only found the NFL’s CBA, but also the NBA’s, and the NBA’s actually has a national anthem clause: “Players, coaches and trainers are to stand and line up in a dignified posture along the sidelines or on the foul line during the playing of the National Anthem.” Arguably that means the NBA’s CBA doesn’t require as high a showing, and any kneeling would seem to be contrary to its national anthem clause, whether it harms a club or not.

Wondering about baseball? Check out the article’s discussion of the MLB’s CBA.

One thing not discussed in the article, if the NFL were to go to court and ask a judge to issue an order requiring players to stand, then arguably the players’ First Amendment speech rights would be triggered. While the NFL itself is not subject to the First Amendment (the First Amendment only limits what the government can do), it would trigger the First Amendment if it asked a judge to issue an order limiting speech. Until then it’s a matter of collectively bargained rights (and plain business power).

New York cracks down on independent contractors

Effective May 15, 2017, New York enacted the “Freelance Isn’t Free Act,” which restricts a company’s right to enter into independent contracts. Restrictions include the requirement for a written contract, full payments within 30 days or by the deadline set forth in the written contract (for payments of $800 or more) and protection from retaliation.

Penalties include statutory damages, double damages, injunctive relief, and attorney’s fees. Individuals may sue to vindicate their rights in state court, and if satisfied there a pattern or practice of violations, the government can sue to recover a penalty up to $25,000.

Complaints can be filed with the state of New York, which can also assist individuals in navigating civil lawsuits.

Source: Freelance Isn’t Free Act – DCA

Ban the Box laws spread across the country

Looking for a survey of ban-the-box laws (laws that prohibit private employers from asking applicants about criminal histories)? These laws are being debated at every level of the government. With some form of “ban the box” aka “fair chance” legislation in 9 states (Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont) and 29 local authorities, it can be a challenge to determine if your company is in a jurisdiction covered by such a law. At the federal level, the Fair Chance to Compete Act was introduced (though not passed) in 2017, as S. 842 and H.R. 1905.

Here’s a handy chart published by SHRM (Society for Human Resource Management). See also this report by the National Employment Law Project, which estimates that “over 226 million people in the United States—over two-thirds of the U.S. population—live in a jurisdiction with some form of ban-the-box or fair-chance policy.”

Note these laws are quickly evolving. Indeed, this posting will likely be out of date by the time readers view it (!). Call your employment lawyer for updates.

Source: Ban the Box Laws by State and Municipality

My thoughts on the NFL lawsuit involving Ezekiel Elliott

Wonder whether Ezekiel Elliott will play for the Cowboys Sunday against the Broncos? Listen to my radio appearances this morning on 850 AM KOA’s Colorado Morning News then the Orange and Blue 760 AM’s Purely Broncos.

State marijuana law not preempted by federal law, at least according to one federal trial court

In the first case of its kind, a federal district court held that Connecticut’s marijuana-permissive law is not preempted by federal law. The case arose when an employer refused to hire the plaintiff after she tested positive for marijuana that she’d been taking for PTSD (in its synthetic pill form, Marinol). Unlike most states’ marijuana-permissive laws, Connecticut’s prohibits employers from discriminating against individuals on the basis of their use of medical marijuana.

When the plaintiff sued, the employer argued that the anti-discrimination provisions in Connecticut’s marijuana-permissive law were preempted by federal law. Marijuana remains a controlled substance under federal law, specifically the Controlled Substances Act (“CSA”).

The federal court disagreed, strongly (parenthetical in original):

Defendant argues that because the CSA prohibits marijuana use, defendant would be violating federal law (and thus violating the federal nursing home regulations that require compliance with federal law) by hiring plaintiff. This argument borders on the absurd. Because the act of merely hiring a medical marijuana user does not itself constitute a violation of the CSA or any other federal, state, or local law, defendant is not exempt from § 21a-408p(b).

Will other courts follow the court’s decision? It seems inconsistent with at least one precedent, Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010), although the court distinguished that case, saying that, while Emerald Steel was “quite similar,” it raised a “very different question.”

Employers should learn whether the states, municipalities or other local authorities in which they employ workers have passed marijuana-permissive laws, like Connecticut’s, that either prohibit discrimination against or require reasonable accommodation of medical (or recreational) marijuana users. Employers in such states should be mindful whether Noffsinger suggests a need to comply with such state laws even though they believe such compliance is in tension with federal law. Currently at least eight states have such laws: Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York and Minnesota.

In states like Colorado, where neither medical nor recreational marijuana laws prohibit such discrimination nor require such reasonable accommodation, Noffsinger would seem to have no impact. In Colorado in particular, the Colorado Supreme Court has already held employers may terminate marijuana users. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).

Source: Noffsinger v. SSC NIANTIC OPERATING COMPANY LLC, Dist. Court, D. Connecticut 2017 – Google Scholar

Congress Takes Shot at Browning-Farris – Law Week Colorado

Interested in reading Bill Berger‘s thoughts about Congress’ efforts to reverse Obama-era expansions of the Joint Employer doctrine, especially H.R. 3441 (which if passed would be the Save Local Business Act)? Check out the August 7, 2017 issue of Law Week Colorado. If passed, the Act would tighten the application of the Joint Employer doctrine (back) to requiring evidence of actual control by the purported joint employer in cases involving the National Labor Relations Act or the Fair Labor Standards Act.

Source: Congress Takes Shot at Browning-Farris – Law Week Colorado

Guest lecturing at CSU

Fun morning guest-lecturing in a couple HR and compensation classes at Colorado State University’s College of Business courtesy of Prof. Samantha Conroy. Thank you, Sam!

Fifth Circuit rejects aggregation argument in WARN case

WARN (the Worker Adjustment and Retraining Notification Act) is a federal law that requires covered employers to provide 60-day written notice before a covered reduction in force, in particular what it defines as either a “mass layoff” or “plant closing.”

To be applicable, WARN requires, among other things, that the layoffs occur at a “single site of employment” with 50 or more workers. In this case, the plaintiff was laid off from a rig that had fewer than 50 workers, so WARN did not apply. He argued that all the workers at all the rigs in the basin should be counted. The Fifth Circuit rejected his argument, holding that to do so, WARN required all such other locations to be within a “reasonable geographic proximity” of his rig. Although the rigs were all in the same basin, that basin was “250 miles wide by 300 miles long—that is … 75,000 square miles—and spread across two states, (which) would be inconsistent with” a finding of reasonable geographic proximity, noting that even “two plants across town will rarely be considered a single site.”

The case is a reminder to employers to carefully consider the math of anticipated reductions. WARN analysis is technical. Although in this case the employer was successful, it had to incur the costs of litigating the case all the way to the Fifth Circuit. Additionally employers should remember that state and local laws may exist that add to WARN’s requirements.

Source: Meadows v. Latshaw Drilling Company, LLC