The Supreme Court published its opinion in Muldrow v. City of St. Louis. The syllabus succinctly describes the holding as: An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant. Some Circuit Courts had been applying a heightened standard, requiring "significant" harm. The facts in this case are illustrative of the kinds of close calls that will now come out in favor of the plaintiff/employee. The plaintiff was a police officer in the p ..read more

On Tuesday, the U.S. Department of Labor announced its Final Rule: Employee or Independent Contractor Under the Fair Labor Standards Act. A quick overview: Effective Date:  March 11, 2024 Why it matters:  The FLSA sets a minimum wage and requires overtime pay (time and a half for hours over 40 worked in a workweek). It also imposes certain recordkeeping requirements, and prohibits retaliation for filing complaints about violations. Simply put, this all applies to employees but not independent contractors.  Not official use. Shut up and tell me the test! The final rule u ..read more

What better way to kick off the new year than with my latest article in Pennsylvania Business Central? The article addresses Overtime and Noncompete Regulations to Plan for in 2024. Will they actually take effect? We don't know yet. But, employers should start planning just in case ..read more

Yesterday, the National Labor Relations Board (NLRB) adopted a new standard for assessing the lawfulness of work rules (press release | decision in Stericycle, Inc.). If you're stuck in the past (ya know, like two days ago), here is an overview of the overruled categorical Boeing standard (maybe bookmark it in case a Republican gets elected president).  So, what is the "new" standard, which actually "builds on" the "old-old" (pre-Boeing) standard? Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill em ..read more

Awe man, how embarrassing. It turns out that some of use (by which I mean basically all of us) have been getting it wrong for 46 years! You see, Title VII requires employers to reasonably accommodate an employee's sincerely held religious beliefs unless doing so would impose an "undue hardship." Well, apparently we've been misinterpreting a 1977 Supreme Court decision (Trans World Airlines, Inc. v. Hardison) to interpret "undue hardship" as meaning "more than a de minimis cost." In fairness to us, the Supreme Court decision in question literally says, “To require TWA to bear more than a de min ..read more

Yesterday. the NLRB issued its decision in The Atlanta Opera, Inc. You know it's important when they also issue a press release.  It is probably easiest to explain what the new test is not: "The Board expressly rejected the holding of the SuperShuttle Board that entrepreneurial opportunity for gain or loss should be the 'animating principle' of the independent-contractor test." So, what is the test? I know what you're thinking... "Phil, pleeease tell me that it's a nonexhaustive list of ten factors!?" You know it! The decision marks a return to "longstanding principles" and "independent-c ..read more

NLRB General Counsel, Jennifer Abruzzo, issued a memorandum addressing the NLRB's decision in McLaren Macomb (memo | press release | McLaren decision). You can read my analysis of that decision here: NLRB takes aim at confidentiality and nondisparagement clauses in separation agreements. The whole memo is worth a read, but some highlights of the GC's view: Even unsigned agreements violate the NLRA if they were proffered and include unlawful nondisparagement and confidentiality provisions; The decision applies retroactively to separation agreements entered into even before the NLRB's decision ..read more

On February 21, 2023, the NLRB issued its opinion in McLaren Macomb and corresponding press release, Board Rules that Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights. The case involved the following provisions in separation agreements offered to 11 permanently furloughed bargaining unit employees: 6. Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining l ..read more

I'm not sure how this is possible, but I tend to agree with the majority and both dissents in the latest Supreme Court decision. Yesterday, SCOTUS issued its opinion in Helix Energy Solutions Group, Inc. v. Hewitt.  The case dealt with a highly compensated employee who earned over $200,000 annually and performed executive duties. The employer treated him as an exempt employee and did not pay him overtime. The employee, however, was paid a daily rate of $963 (which changed at one point to $1,341).  The "critical question," according to the majority, was whether this daily rate met the ..read more

Last time, I wrote about the new regs regarding race discrimination under the Pennsylvania Human Relations Act (PHRA) (and the housing and public accommodations provisions). Guess what? The new regs also address "sex." You can read the full regs here. Under the new regulations, the term "sex" now includes: Pregnancy, including "the use of assisted reproductive technology; the state of being in gestation; childbirth; breastfeeding; the postpartum period after childbirth; and medical conditions related to pregnancy"; Sex assigned at birth; Gender Identity or expression; "Affectional or sexual ..read more