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The Modern Workplace

The Modern Workplace

  • Posts by Neil Goldsmith
    Partner

    Neil Goldsmith counsels employers on labor relations issues and handles complex employment litigation matters as well as day-to-day advising questions for large and small companies both locally and nationally. Neil takes a ...

The gig economy is an industry that is generally characterized by the prevalence of short-term contracts, freelance work, and indefinite flexible working arrangements. It also usually comes with getting work through some type of online or app-based digital platform. The unifying factor in all of these companies is that they are managing independent contractors and freelancers who have signed up to perform task services for the ultimate end user. From a legal perspective, this is very different from the traditional employee model. In a recent podcast, we explored the impacts of the ...

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By now, we are all familiar with the routine employee handbook disclaimer: 

This Handbook is provided for informational purposes only and is not a contract between the Company and any employee. 

Even with such a disclaimer in place, though, employers should be thoughtful when drafting and implementing detailed policies, particularly wage-related policies, as highlighted by a recent case out of Minnesota. In Minnesota, courts have often refused to construe an employee handbook as a contract when it contains a conspicuous contract disclaimer. In Hall v. City of Plainview, though ...

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Posted in Labor & Unions
Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to engage in protected, concerted activities. Such protected activities often include protesting working conditions that employees find unfair, unsafe, or undesirable. But what happens when these protected statements are coupled with inappropriate outbursts filled with abusive, harassing or profane language? Or worse yet, what if these protected statements are coupled with racist or discriminatory statements? Can employers still discipline employees for their inappropriate behavior ...
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Posted in COVID-19

The COVID-19 pandemic has drastically changed the landscape for all employers. Most have had to lay off or furlough a significant number of employees and institute other cost-cutting measures, such as salary decreases, discontinuation of 401(k) matching programs, and hours reductions. For those still operating, they face the challenge of keeping their employees safe while still meeting their customers demands, priorities that are not always aligned. 

In this environment, labor unions have been fighting to insert themselves into these critical management decisions in the name ...

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On January 12, 2020, the U.S. Department of Labor (DOL) published its final rule regarding joint-employer status under the Fair Labor Standards Act (FLSA), the federal wage and hour law. This final rule provides a more employer-friendly joint employer liability standard than previous guidance issued by the DOL under the Obama administration.


In recent years, many employment lawsuits have been brought against entities that do not technically employ the workers bringing the employment-related claims, but may exert some level of control or influence over their employment (such as ...
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As Thanksgiving and the holiday season approaches, companies often look for ways to contribute to charitable causes within their communities. One way they might accomplish this worthwhile endeavor is by creating and encouraging their employees to participate in formal volunteer opportunities. This is a great way for companies to give back and for individual employees to take a break from the rigors of everyday business life and focus on helping others. Whether employees should be compensated for participating in these volunteer activities, however, is not always clear, and if ...
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Posted in Labor & Unions


The National Labor Relations Board (NLRB or the Board) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employers premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employers property when such activity would significantly interfere with the employers use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have ...
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Posted in Wage & Hour

Governor Tim Walz recently signed into law expansive new wage theft protections for employees that will go into effect on July 1. The new law significantly changes a number of employer wage-related requirements. It also includes increased civil enforcement penalties, as well as new criminal penalties for intentional wage theft. The major requirements of the law are summarized below:


Earning Statements


The law requires that employers include additional information in the earning statements provided to employees at the end of each pay period. Employers must now include 1) the rate ...
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On April 9, 2019, the New York City Council passed a city ordinance that prohibits employers from requiring applicants to submit to drug tests for marijuana. The citys Mayor is expected to sign the ordinance in the next few weeks and it would take effect one year after it is signed into law. Importantly, the ordinance only applies to job applicantsit does not apply to current employees. This is the first law within the U.S. to prohibit employers from drug testing for marijuana.


While this is certainly uncharted territory, marijuana users should temper their excitement and employers ...
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Posted in Hiring & Firing

The practice of running background checks on prospective and current employees has become commonplace in many industries. Companies should be careful, however, to ensure that their process complies with the hyper-technical requirements of the federal law governing the use of these background checks the Fair Credit Reporting Act (FCRA). Under the FCRA, before an employer may obtain a background check from a third party vendor for a fee, it must make a written disclosure to the subject of the background check. That written disclosure must be a stand-alone document that consists only ...
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Posted in Labor & Unions

Joint employer liability under the National Labor Relations Act (NLRA) has been a hot topic in recent years, because the NLRA standard has been in flux and joint employer status can be a significant issue for employers. For example, under the NLRA, a joint employer may be required to bargain with a union representing jointly employed workers. In addition, a joint employer can be subject to joint and several liability for an unfair labor practice by the other joint employer and can face labor picketing that would otherwise be unlawful.

In August 2015, the National Labor Relations Board ...
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Non-competition and non-solicitation agreements can be useful tools for companies trying to protect their key client relationships and confidential information. Enforcing these agreements, however, can sometimes be difficult, given the laws general disfavor of them. A recent Minnesota Court of Appeals case illustrates how a thoughtfully drafted non-compete can protect a company in the event that a former key employee begins competing with his former company.


In Lapidus v. Lurie LLP, a former name partner of a well-known Minneapolis accounting firm was found to have solicited ...
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Posted in Wage & Hour

Employers that have operations or contractors working in California, beware. On April 30, 2018, the California Supreme Court issued an opinion establishing a new pro-employee standard in worker misclassification cases arising under California state wage and hour law. The opinion overturned three decades of precedent and will likely lead to more rulings that independent contractors have been misclassified and are actually employees.


California courts had long applied what is known as the Borello test for determining whether an individual is a contractor or employee under ...
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Defending a wage and hour class or collective action is one of the most difficult employment law challenges facing companies today. Penalties are steep, attorneys fees are significant, and liability can be hard to avoid. Employers should be mindful, however, that they may also face liability under the National Labor Relations Act (NLRA) if they do not properly respond to collective employee concerns raised in wage and hour lawsuits. A recent case, Village Red Restaurant Corp. d/b/a Waverly Restaurant, 366 NLRB No. 42 (2018), exemplifies the additional liability that employers may ...
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Posted in Labor & Unions
In September 2017, the U.S. Senate confirmed William J. Emanuel to fill the last vacant seat on the National Labor Relations Board (NLRB). Emanuel joins recent appointee Marvin Kaplan and long-standing member Philip A. Miscimarra to form the first Republican-majority board since 2009. However, these weren't the only significant developments to come to the NLRB this fall. On Nov. 8, 2017, the U.S. Senate confirmed Peter Robb, a management-side labor lawyer, to replace President Obama-appointed Richard Griffin as the NLRB General Counsel. 
While many employers have long awaited ...
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Hurricane Harvey has caused unprecedented damage in Texas, resulting in thousands of companies temporarily (or perhaps even permanently) closing down operations. While the main focus is and should be the safety of everyone affected by Harvey, this natural disaster brings with it a host of legal and practical issues for employers. Even if a company is not in the storms path, it should consider using Harvey as an opportunity to think through some of the preparations that can make disasters a bit easier to manage. Below are a few common questions employers may be faced with in an emergency.
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Just days after withdrawing some of its guidance on joint employer and independent contractor issues, the U.S. Department of Labor (DOL) indicated it will soon reconsider the much maligned Persuader Rule and white-collar Overtime Rule that were both enjoined last fall. The DOL wants to rescind the Persuader Rule and plans to seek additional public comment on the white-collar salary thresholds set forth in the Overtime Rules.
As a reminder, the Persuader Rule would have required employers to publicly disclose when they use consultants (including lawyers) to obtain labor relations ...
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While most of the nation has been focused on the potential repeal of the Affordable Care Act, the U.S. House of Representatives passed a bill this week that could, depending on its progression, drastically affect overtime pay practices in the private sector. The bill, dubbed the Working Families Flexibility Act, would allow private employers to offer paid time off instead of overtime pay to compensate non-exempt workers for overtime hours. Public employers already have the legal right to offer such comp time as a form of overtime pay, but private employers do not.
 

Not surprisingly ...

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On January 30, President Trump nominated Neil Gorsuch to fill the Supreme Court seat that has been vacant since Antonin Scalia's sudden passing in February 2016. You may recall that President Obama previously nominated Merrick Garland to fill this seat, but he was never confirmed because Senate Republicans refused to hold a confirmation hearing.  Gorsuch is currently a judge on the U.S. Tenth Circuit Court of Appeals, which has jurisdiction over federal court cases in Colorado, Utah, Oklahoma, New Mexico, Wyoming, and Kansas. He received his undergraduate degree from Columbia ...

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Posted in Labor & Unions

The most powerful weapon a labor union can unleash against an unwitting employer, whether unionized or not, is a strike. Strikes, however, can take different forms and arise under different circumstances. Last month, the National Labor Relations Boards (NLRB) Office of the General Counsel (GC), the prosecuting arm of the federal NLRB agency, issued a short but powerful memorandum regarding an increasingly common union tactic: intermittent and partial strikes. While the Board has generally held that such strikes are not protected under the National Labor Relations Act, the GC ...

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Posted in Labor & Unions
Employers by now are likely accustomed to hearing about the National Labor Relations Board (NLRB) and its efforts to firmly insert itself into both union and non-union workplaces. For the past few years, the NLRB has issued countless decisions invalidating what have otherwise been deemed routine and sensible employment policies, such as requiring confidentiality of internal investigations, clarifying at-will employment, and prohibiting workplace bullying. Recently, however, the NLRB issued a decision involving corporate mergers and acquisitions that will impact ...
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As noted in a previous blog post, Justice Scalia's sudden passing last month will have a big impact on how key labor and employment cases are decided by the U.S. Supreme Court. On March 16th, President Obama nominated Judge Merrick Garland to fill Justice Scalia's seat. Judge Garland is currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The D.C. Circuit is a primary forum for challenges to administrative actions, including actions by the National Labor Relations Board (NLRB). This means that Judge Garlands judicial record is of ...
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