As reported on the Hunton Employment & Labor Perspectives blog, the NLRB’s Office of the General Counsel (“the General Counsel”) recently issued an internal directive regarding the manner in which NLRB Regions prosecute duty of fair representation charges against unions. Under the National Labor Relations Act, unions have a duty of fair representation to the members of the bargaining unit it represents by engaging in conduct that is not arbitrary, discriminatory or in bad faith, particularly with regard to the processing of worker grievances. Board law has established (and unions typically offer as a defense) that “mere negligence” alone does not amount to arbitrary conduct that would serve to breach the duty of fair representation. Continue Reading NLRB General Counsel Elevates Standard for Unions’ Duty of Fair Representation

San Francisco is the latest jurisdiction to pass a law that prohibits employers from inquiring about prior salary history during hiring. New York City, Boston, Philadelphia, Pittsburgh and New Orleans already have similar laws, and in a concerning trend for employers, 26 states are currently considering such legislation.

The San Francisco city ordinance went into effect on July 1, 2017, and restricts employers from (1) considering an applicant’s salary history in determining whether to make an offer of employment or the amount of salary to offer; (2) inquiring about salary history; (3) retaliating against an applicant that declines to provide salary history; and (4) releasing a current or former employee’s salary history to a prospective employer without written authorization. Notably, the restrictions in the San Francisco ordinance, like similar laws in New York City and New Orleans, prohibit an employer from conducting a search of publicly available records to obtain salary history information.

Continue Reading San Francisco Bans Employers From Asking Job Applicants About Salary History, 26 States Considering Similar Legislation

On June 7, 2017, the Department of Labor (“DOL”) announced that it is withdrawing two administrative interpretations issued by the DOL under the Obama administration in 2015 and 2016 relating to misclassification of independent contractors and joint employment. These two administrative interpretations sought to expand the definition of “employee,” thereby increasing the possibility of misclassification cases, and, as some argued, expanding the concept of joint employer under the Fair Labor Standards Act. While this is a welcomed announcement for employers, the DOL emphasized in the press release that the withdrawal “does not change the legal responsibilities of employers under the Fair Labor Standards Act.” This is the first effort by the DOL under the Trump administration to dismantle some of the more controversial policies issued by the DOL in the Obama-era. The decision to withdraw these administrative interpretations may also signal that the DOL intends to return to the opinion letter writing process, making compliance much simpler for employers.

In December 2014, the New York Attorney General’s Office initiated an investigation into Jimmy John’s corporate office and its New York franchises. Jimmy John’s is a sandwich shop with franchises throughout New York and the United States. The investigation in New York concerned whether the use of a non-compete clause that barred departing employees from taking a job with any employer within two miles of a Jimmy John’s store that made more than 10 percent of its revenue from sandwiches was legal. Continue Reading Jimmy John’s Will Stop Using Non-Compete Agreements in New York