NLRB enhances ability to present Scabby the Rat

In Lippert Components, Inc., the NLRB held that “Scabby the Rat” — the common nickname for a giant inflatable rat balloon often up to twelve feet tall, that is transported and displayed from the bed of a truck, which can in turn be parked curbside or in other public parking — is akin to a handbill, not picketing, and, as such, enjoys enhanced protections under the NLRA.

Denver passes ordinance recognizing municipal-level wage claim rights in addition to state and federal protections

In addition to state and federal protections, the City and County of Denver passed Ordinance 22-1614, which allows workers in Denver — whether employees or contractors or employees of staffing agencies — to file wage claims, which will investigate and can impose penalties. Additionally, the City can, under the ordinance, commence its own investigation without first receiving a complaint. Protections against retaliation are included in the Ordinance. Workers also have a private right of action whereby they can file suit in court if they opt to do so instead of relying on an administrative complaint.

Sixth Circuit holds that request for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave

In Milman v. Fieger & Fieger, LLC, the Sixth Circuit held that a equest for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave. There the plaintiff claimed she’d been retaliated against for requesting FMLA leave, and her employer responded that she had not been entitled to FMLA leave and had not actually taken FMLA leave. The Sixth Circuit rejected the company’s arguments, holding that her mere request was itself protected against retaliation.

Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected.

Ninth Circuit holds USERRA leave must be paid if employer offers “comparable” paid leave

In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit held that USERRA leave must be paid if the employer offers other “comparable” paid leave. To determine whether other paid leave is “comparable” to USERRA leave, the Ninth Circuit identified three factors: “duration, purpose, and control,” of which, it said, duration is the most important, and in gauging duration, the Ninth Circuit held that the analysis should look at the actual duration of USERRA leave sought by the plaintiff, not in general at, for example, the maximum hypothetical USERRA leave a worker might wish to take.

The Ninth Circuit remanded the case before it to determine whether the paid leave offered by the employer was “comparable,” requiring it to pay for the plaintiff’s USERRA leave. Thus, the Ninth Circuit held companies cannot take a “categorical” approach to payment for USERRA leave but must consider each individual worker’s circumstances.

Military leaves vary greatly in length, and the longest leaves can last years. Were we to adopt a categorical approach to military leaves, no other type of leave would look similar, and servicemembers would not be protected under § 4316(b)(1).

Although this was not the first case to hold that in theory USERRA leave may have to be paid if comparable paid leave is offered, it is the first appellate decision to address what “comparability” means, how to gauge it, and, more importantly, to reject a “categorical” analysis.

The opinion was issued by a 3-judge panel of the Ninth Circuit. It is unknown at this time whether the entire Ninth Circuit will rehear the case or if an appeal to the Supreme Court will be sought, much less how other courts will view this “comparability” test.

San Francisco mandates paid military leave

San Francisco has broken ground, becoming the first jurisdiction to require that certain employers pay certain employees certain amounts of paid military leave. The leave is generally capped at 30 days per year and can be waived by the workers’ union in a collective bargaining agreement.

As noted in a prior post, at least one court has held that the federal military leave law (USERRA) requires paid leave if the company offers paid leave to people on similar non-military leaves, reasoning that USERRA prohibits discrimination against military leave.

DOL issues Fact Sheet #280 reminding that FMLA is available for serious mental health conditions

The DOL issued Fact Sheet #280 reminding that FMLA is available for serious mental health conditions, that involve no physical impairment, whether involving the employee or their spouse, child, or parent.

OFCCP issues guidance to federal contractors explaining the documentation it will require to analyze pay equity compensation analyses

The OFCCP has issued a guidance to federal contractors explaining the documentation it will require to analyze pay equity during a compensation analysis.

Federal government issues guidances regarding the use of AI, software and algorithms in employment

The federal government issued multiple guidances regarding the use of AI, software and algorithms in employment including hiring, accommodation decisions and medical or other private inquiries. See for example \recent guidances by the EEOC, White House, and DOJ.

The White House summarized its goals for an AI Bill of Rights in employment, as follows:

You should not face discrimination by algorithms and systems should be used and designed in an equitable way. Algorithmic discrimination occurs when automated systems contribute to unjustified different treatment or impacts disfavoring people based on their race, color, ethnicity, sex (including pregnancy, childbirth, and related medical conditions, gender identity, intersex status, and sexual orientation), religion, age, national origin, disability, veteran status, genetic information, or any other classification protected by law. Depending on the specific circumstances, such algorithmic discrimination may violate legal protections. Designers, developers, and deployers of automated systems should take proactive and continuous measures to protect individuals and communities from algorithmic discrimination and to use and design systems in an equitable way. This protection should include proactive equity assessments as part of the system design, use of representative data and protection against proxies for demographic features, ensuring accessibility for people with disabilities in design and development, pre-deployment and ongoing disparity testing and mitigation, and clear organizational oversight. Independent evaluation and plain language reporting in the form of an algorithmic impact assessment, including disparity testing results and mitigation information, should be performed and made public whenever possible to confirm these protections.

The White House’s goal for an AI Bill of Rights includes components regarding data privacy, notices and consent.

The EEOC gives several examples of ways that “an employer’s use of algorithmic decision-making tools could violate.”

  • The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm.

  • The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.

  • The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.


NLRB permits micro units

In American Steel Construction the Board reversed a Trump-era ruling regarding micro units, allowing the Board to certify elections in union organizing campaigns of sub-groups of workers so long as the sub-group is “readily identifiable as a group based on job classifications, departments, functions, work locations, skills or similar factors.”

Third Circuit adopts “about to” test for gauging protected activity under FLSA

Employers are prohibited from retaliating against employees who exercise their rights under federal wage law (FLSA). But what if the employee hasn’t yet, maybe is about to? In Uronis v. Cabot Oil & Gas Corp.the Third Circuit held FLSA prohibits retaliation “where an employer anticipates an employee will soon file a consent to join an FLSA collective action (or is “about to testify”) — (even if) no such ‘testimony’ has yet occurred or been scheduled or subpoenaed.” In so holding, the Third Circuit rejected the argument that the person must have at least taken “overt act” under FLSA.

Uronis adequately pleaded that Appellees had fair notice that he engaged in protected activity. Taking Uronis’ allegations as true, Appellees explicitly declined to hire him “because of” the (collective action lawsuit under FLSA). … Based on his allegations, it is plausible that Appellees discriminated against Uronis based on their anticipation that he would file a consent to join the collective action, or otherwise give relevant testimony. Retaliating against an employee based on such a perception violates Section 15(a)(3) (of FLSA).

Third Circuit holds that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation produces credible evidence of a violation warranting discharge

In Canada v. Samuel Grossi & Sons, Inc., Third Circuit held that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation later produces credible evidence of a violation warranting discharge. In the case, the company asserted that it had terminated an employee after a search of his phone confirmed he’d been soliciting sex workers during working hours. The employee asserted that the company had looked at his phone only in retaliation when he requested FMLA; he also asserted other claims including FMLA interference, disability-related claims and racial discrimination.

For the reasons we have already explained, we reject a rule that incentivizes employers to dig up reasons to fire an employee who has engaged in protected activity, and then immunizes them from suit based upon a subsequent fortuitous discovery of grounds for termination.

Here, as in Hobgood, there is a “ ‘convincing mosaic’ of circumstantial evidence,”63 which, when taken as a whole and viewed in a light favorable to Canada’s case, could convince a reasonable jury that he was the victim of unlawful retaliation.64 In other words, the evidence could support a finding that the search itself was retaliatory.

Supreme Court holds that Highly Compensated Employee exemption requires guaranteed salary irrespective of actual amount paid

Federal law (FLSA) contains an exemption from overtime requirements for Highly Compensated Employees. In its Fact Sheet 17H, DOL summarizes the Highly Compensated Employee exemption, as follows:

The regulations contain a special rule for “highly compensated” employees who are paid total annual compensation of $107,432 or more. A highly compensated employee is deemed exempt under Section 13(a)(1) if:

  1. The employee earns total annual compensation of $107,432 or more, which includes at least $684* per week paid on a salary or fee basis;
  2. The employee’s primary duty includes performing office or non-manual work; and
  3. The employee customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.

Thus, for example, an employee may qualify as an exempt highly compensated executive if the employee customarily and regularly directs the work of two or more other employees, even though the employee does not meet all of the other requirements in the standard test for exemption as an executive.

In Helix Energy Solutions Group, Inc. v. Hewittthe Supreme Court wrestled with the first requirement: The payment of at least $684 per week, $107,432 on a salary or fee basis. The case involved a worker who was paid well in excess of that amount. He earned “over $200,000 annually.” But, he argued, he wasn’t paid that amount “on a salary or fee basis.” Rather, he was paid a daily rate for each day he worked every two weeks. He worked on an offshore oil rig and was typically active 84 hours per week. There was no argument that he was paid on a “fee basis,” instead his employer argued that he was paid the requisite amount because he was in fact paid so much more than the required minimum.

In fact the dissent noted that, although he hadn’t been guaranteed a minimum weekly amount, he was guaranteed a minimum daily amount because he was paid by a daily rate, and the dissent noted that his daily rate was $963, thus the dissent noted that if he worked any part of a week, he was guaranteed to receive at least $963, well in excess of the minimum $684 per week required by FLSA.

The majority of the Supreme Court disagreed. The Supreme Court held that the actual amounts paid were not the only issue. While this worker’s actual pay exceeded — by far — FLSA’s minimum threshold, it hadn’t been paid by way of a guaranteed minimum weekly salary. In short, he was paid by way of a daily rate, which, the majority held, is not the same a minimum guaranteed weekly salary.

Employers who hope to rely on an exemption under FLSA that requires payment of a minimum guaranteed weekly salary are cautioned that the Supreme Court’s decision may not be limited to the Highly Compensated Employee exemption. Employers hoping to rely on any exemption under FLSA should take care to consult with legal counsel about their compensation structures. Helix Energy is a cautious reminder that the amount paid alone is not sufficient to exempt a worker; the remainder of each exemption’s requirements must be met, including, where applicable, the minimum guaranteed weekly salary requirement.


NLRB holds that separation agreements containing broad nondisclosure, nondisparagement or confidentiality language may violate Section 7 of the NLRA

Overruling Trump-era Board precedent, the NLRB, in McLaren Macomb, held that separation agreements containing broad nondisclosure, nondisparagement or confidentiality language may violate Section 7 of the NLRA, which protects both unionized and non-unionized workers (and which the Board is increasingly viewing as protecting non-employee contractors as well). The Board will now review such language to determine if, on its face (and apparently possibly without need of an actual witness to so testify), the language might provide a chilling effect on a (again potentially purely hypothetical) individual’s ability to discuss their wages, hours or working conditions with other workers, the NLRB or even the public in general. The Board did not provide guidance on how it will review such language or what specific language it might approve, but it seems it will be a narrower view than Republic-appointed Boards might utilize.

The main disagreement between the current Biden-era Board and the prior Trump-era Board appears to be — in addition to the strictness of their language review — their inability to agree on whether a separation agreement (also known as a severance agreement) is by its nature something that relates to wages, hours or working conditions of employment. The Trump-era Board (and the dissenter in this McLaren Macomb decision) viewed severance as, by its nature, being inherently not related to the wages, hours or working conditions of employment.

The issue is likely to proceed to litigation in the courts. However, McLaren Macomb sets forth at least the general approach that the current NLRB will take when reviewing separation agreements.

NLRB permits consequential damages as possible remedies

In follow-up to the prior post regarding NLRB General Counsel Memorandum 21-06, the Board has authorized the award of at least some no previously recognized remedies under the NLRA. The case was Thryv Inc. The Board did not specify particular aspects of relief, saving that for lower decisionmakers in particular cases. Without calling them “consequential damages,” which is a commonly used legal term, the Board held in this 3-2 decision that these new remedies would be available if the monetary losses were the “direct and foreseeable result of a respondent’s unfair labor practice.” The majority did take pains to note that these new remedies would not include “pain and suffering” or other emotional distress.  As with the NLRB General Counsel Memorandum, the Board’s ruling is likely to draw litigation on review.

DOL issues Field Assistance Bulletin reminding employers that federal wage-hour requirements still apply even when employees are working remotely

In its Field Assistance Bulletin 2023-1 , the DOL reminds employers that federal wage-hour requirements still apply even when employees are working remotely. Thus for example, employers still must comply with the requirements to provide and document meal periods and rest breaks, as well as lactation breaks, and although employers may suspect that a remote worker is taking unauthorized breaks, the company may not simply assume time should be unpaid. The DOL also discusses an employer’s ability to either schedule work hours (assign remote workers a particular shift of hours to be worked) or assign a certain number of hours to be worked each day. The DOL discusses how employers can instruct employees in a variety of telework scenarios to clock in/clock out at the beginning, the end and throughout the day.

The DOL reminds employers though that, when they know or have reason to believe the employee is working outside recorded hours, the time must be recorded and paid as hours worked, even if the employee is themself choosing to work “off the clock” as it were from home. The DOL cites to its Field Assistance Bulleting 2020-5, which discussed how employers can instruct workers to record all hours worked, including such time, even where not requested, scheduled or authorized by the company.

Employers are reminded that in addition to the federal requirements discussed in the DOL’s Field Assistance Bulletin, additional state and local requirements might apply, including in Colorado for example the CDLE‘s COMPS order and related requirements.

Ninth Circuit strikes down California’s AB 51

In Chamber of Commerce of the United States of America v. Bonta, the Ninth Circuit struck down the California law known as “AB 51,” which, without explicitly invalidating mandatory pre-dispute employment arbitration agreements, would have made it a crime for employers to enter into such an agreement with its workers. The Court held that AB 51 is preempted by the Federal Arbitration Act, which the Supreme Court has held robustly permits arbitration agreements.

NLRB General Counsel pushes for enhanced remedies under NLRA

In NLRB General Counsel Memorandum 21-06, the NLRB General Counsel has ordered Board offices to seek remedies never before recognized as available under the NLRA, including the following, each subject to circumstances described in the Memo:

  • Enhanced consequential damages
  • Including even front pay
  • And reimbursement of union organizing costs
  • Mandating hires
  • Lost wages to individuals not authorized to work in the United States.

Attempts to seek those not previously recognized remedies are sure to be subject to litigation, including over the constitutionality of the General Counsel’s office ability to expand the NLRA without congressional legislation or even regulatory rulemaking.

Congress enhances laws protecting pregnant and nursing mothers at work

President Biden has signed into law the Consolidated Appropriations Act, which includes two enhancements to the protections applicable to pregnant and nursing mothers at work:

  • The Pregnant Workers Fairness Act (CAA Sec. 101-109) applies to employers of 15 or more, subject to some exceptions, and requires reasonable accommodations of pregnancy, even though a short-term condition that would not otherwise generally qualify under the ADA as a “disability,” and a two-way interactive process for considerations of such requests. It also protects such employees from retaliation and discrimination. This new law also prohibits employers from mandating that a pregnant worker absent a reasonable accommodation that has not been developed through the interactive process or mandating that the pregnant worker take leave as a reasonable accommodation over their objection.
  • The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act, CAA Div. KK, Sec. 102) requires workers be allowed reasonable breaks to express , for up to one year after the birth of a child, in a private space, not a bathroom.

The EEOC has issued information explaining the new Pregnant Workers Fairness Act here, and the DOL re the PUMP Act here.

NLRB permits wearing of union insignia absent special circumstances

In Tesla, Inc., the NLRB reversed a Trump-era decision re union insignia, returning to prior caselaw holding that employers must allow employees to wear union insignia despite dress codes and uniform policies, unless “special circumstances” require otherwise. Whether special circumstances exists will depend on whether, in each case’s circumstances, the union insignia “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, unreasonably interfere with a public image that the employee has established, or when necessary to maintain decorum and discipline among employees.”

Congress enacts limitations on non-disclosure and non-disparagement agreements regarding sexual harassment and sexual assault

President Biden signed into effect the Speak Out Act, which prohibits judicial enforcement at least in federal and tribal courts of non-disclosure or non-disparagement clauses when sought to be enforced relative to a matter involving sexual assault or sexual harassment, so long as the clause is in an agreement entered into on or after 12/7/2022. The Act’s prohibition includes a prohibition against enforcement of such provisions relative to the existence or terms of a settlement involving sexual assault or sexual harassment, as well against judicial actions, at least in federal and tribal courts, involving negative statements about another party related to such an agreement, sexual harassment or sexual assault.

The Act’s applicability in state courts is not clear from its language and likely to draw litigation.

NLRB enhances employee property access rights for labor protest activities

Reversing its Trump-era approach, the NLRB held in Bexar County Performing Arts Center Foundation that property owners can only exclude the employees of contractors who work on-site, during labor protests, when their protest activities “significantly interfere” with the use of the property or when justified by “another legitimate business reason.” The case involved the owner of a performance venue, a symphony and its musicians who were attempting to organize, but the Board’s holding is not limited to performing arts venues. It could also apply to a building owner, a construction company and its workers, and would govern the building owner’s ability to exclude the construction workers who might be engaged in labor protest activities.

Colorado Court of Appeals certifies class in wage lawsuit for rest breaks but not meal periods

Colorado wage law affords employees (1) a 30-minute meal period, subject to a number of requirements and conditions, which, if circumstances on a given day make it impractical to take, requires that the employee be paid for the time spent working instead and further that the employee be allowed an on-the-clock opportunity to consume a meal and (2) a 10-minute rest break for every 4 hours of work, again subject to a number of requirements and conditions. In Hicks v. Colorado Hamburger Co., the Colorado Court of Appeals was confronted with a case in which the timecards for workers in multiple locations allegedly did not show workers’ meal periods or rest breaks. A single worker at one location filed suit alleging he had not been granted them as required by Colorado law and further, he alleged, his co-workers at his and the other locations had similarly not been granted them. He sought a right to pursue his claims not only on his own individual behalf but on behalf of a class consisting of his co-workers at all locations.

The Colorado Court of Appeals ruled that his claim for rest break violations could be pursued as a class action, but the court refused to certify a class on his meal periods. The Court held that the timcards’ silence on the meal periods did not evidence whether there had been a meal period violation because, the Court noted, the employees may have been allowed to consume the on-the-break meal as permitted by and in accordance with the requirements of Colorado law; therefore, the Court held that class certificaiton would be inappropriate since every workers’ right to a meal period on any given day would be subject to individual analysis over just what exactly happened to them that day. However, the Court found the timecards’ silence as to rest breaks indicative of a possible claim because it held that the timecards’ silence did indicate, at least in the Court’s view of the circumstances of this case, that all workers may have been denied the required rest breaks.

The Court’s decision should not be read as a simple rule that all Colorado state law claims for rest breaks may be brought as class actions and that no Colorado state law meal period claims may be brought as class actions. The Court’s ruling may be limited to the facts before it, which the Court discussed in detail explaining its reasoning why the timecards’ silence, at least on the record before it in this case, warranted the different outcomes.  It is also noted that the Court’s ruling did not address whether it was or wasn’t likely that any violation actually occurred; the case was simply over whether either claim could be pursued on behalf of a class. The Court’s ruling does not reflect any likely outcome on the merits.