Employment Law This Week®: New Labor Secretary Nominee, Bargaining Unit Case Remanded, NJ Whistleblower Suit, Class Action Waiver Issue

Episode 60: Week of February 20, 2017

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) As Puzder Exits, Trump Taps Alex Acosta for Labor

Our top story: President Donald Trump nominates Alex Acosta for Secretary of Labor. Acosta was tapped the day after the President’s first nominee, Andrew Puzder, took himself out of consideration. Acosta served on the National Labor Relations Board (NLRB) under President George W. Bush. He was also Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice during the Bush administration and once clerked for Supreme Court Justice Samuel Alito. Acosta is currently the Dean of Florida International University College of Law (FIU). In a 2010 FIU law review article, Acosta argued that the NLRB should shift from interpreting the National Labor Relations Act (NLRA) on a case-by-case basis to relying more on rulemaking under the Administrative Procedures Act. We’ll follow this story as it develops.

(2) DC Circuit Sends Bargaining Unit Decision Back to NLRB

The NLRB had approved an election in a proposed wall-to-wall bargaining unit that included different kinds of employees at Tito Contractors. On appeal, the U.S. Court of Appeals for the District of Columbia Circuit found that the NLRB erred by failing to adequately consider evidence that the workers did not share a "community of interest," as required by the NLRA. For that reason, the court remanded the case to the NLRB for further consideration. Mike McGahan, from Epstein Becker Green, has more:

“At the hearing before the Board, the hearing officer demanded that Tito present an offer of proof on the issue of community of interest rather than live testimony. ... What we see in this case is that the company took advantage of that to present a very detailed offer of proof. So the takeaway for an employer faced in this type of situation is to pack all the facts they can into their offer of proof, using specifics, using examples, so that if the case comes before an appellate court, there’s enough in the record for the court to determine whether the Board did its job correctly in considering the whole record, including contradictory evidence.”

Bonus: Watch the extended interview here.

(3) NJ Whistleblower Suit Gets Jury Trial

A whistleblower in New Jersey gets a jury trial, despite a waiver in his employment contract. An employee for a payment processing company will get another day in court after the New Jersey Appellate Division found that he was entitled to a jury trial. At issue was whether a jury-waiver provision in his employment contract was legally enforceable as applied to a whistleblower claim. The three-judge panel found that the language in the contract was not clear enough because it did not explicitly reference statutory claims.

For more, click here: http://bit.ly/2lqOtfN

(4) Supreme Court Pushes Class Action Waiver Cases

The Supreme Court of the United States has pushed the class action waiver issue to its 2017 term. Are arbitration agreements that bar workers from pursuing class actions enforceable? That question has split the circuits and will need to be resolved by the Supreme Court. But the high court has notified the parties involved that it will not hear arguments until the 2017 term. By that time, it is likely that Judge Neil Gorsuch will have been confirmed, and the high court will have its full complement of nine justices.

(5) Tip of the Week

Alex Howard, Associate Corporate Counsel for Amedisys, shares some advice on best practices for communications now that changes to the federal overtime rules have been blocked in court:

“Any strategic planning you may already have engaged in prior to the preliminary injunction may not have been for naught. You still need to establish a game plan to determine how your business is going to move forward, regardless of what comes next. ... Having your counsel or outside counsel also monitor the federal case will keep you up to date on any new developments, so that you may communicate those to employees that may be impacted. It is also important at this time to monitor state laws that may be implemented in the coming months that would otherwise necessitate an evaluation of your classification of your job roles. ... In the end, communication is always key with your employees. Any communication with them regarding any changes or lack of changes should be carefully crafted, strategically planned, and executed in order to maintain employee morale in the workplace.”

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