By: Frederick T. Smith, Esq., Jennifer L. Mora, Esq., and Christopher W. Kelleher, Esq.

Seyfarth Synopsis: On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.

The Department of Transportation (DOT) has published its long-awaited final rule amending its drug testing program for DOT-regulated employers. The new rule comes in the wake of the Department of Health and Human Services (HHS) revised “Mandatory Guidelines for Federal Workplace Drug Testing Programs” which became effective on October 1, 2017.

The new DOT rule makes the following significant changes:

  • Adding four semi-synthetic opioids (hydrocodone, oxycodone, hydromorphone, and oxymorphone) to the drug testing panel, which is “intended to help address the nation-wide epidemic of opioid abuse” and create safer conditions for transportation industries and the public;
  • Adding methylenedioxyamphetamine (MDA) as an initial test analyte because, in addition to being considered a drug of abuse, it is a metabolite of methylenedioxyethylamphetaime (MDEA) and methylenedioxymethamphetamine (“MDMA”), and such testing potentially acts as a deterrent;
  • Removing testing for MDEA from the existing drug testing panel;
  • Removing the requirement for employers and consortium/third party administrators (C/TPAs) to submit blind specimens in order to relieve unnecessary burdens on employers, C/TPAs, and other parties; and
  • Adding three “fatal flaws” to the list of when a laboratory would reject a specimen and modifying the “shy bladder” process so that the collector will discard certain questionable specimens.

The new rule goes into effect on January 1, 2018. Employers who comply with DOT standards when drug testing should modify their drug testing policies accordingly. Employers that are not subject to DOT requirements, but comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs also should consider whether to modify their drug testing policies to comply with the new rules and guidelines.

If you have questions about the new regulations or employee drug testing in general, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment or Workplace Policies and Handbooks Teams.

  By: Bryan Bienias, Esq.

Seyfarth Synopsis: Former management-side labor attorney Peter Robb was confirmed as the General Counsel for the National Labor Relations Board, the last key piece to what many employers hope will result in the Board’s reversals of several Obama-era rulings.

On Wednesday, the U.S. Senate confirmed Peter Robb as the next General Counsel for the National Labor Relations Board.  Robb replaces former President Obama appointee, Richard Griffin, whose term expired at the end of October.

Robb is a former management-side labor and employment attorney and NLRB veteran, serving as field attorney and Chief Counsel to former Board Member Robert Hunter. In his private practice, Robb represented management in various aspects of labor and employment law and published a number of articles critical of some of the Obama-era Board’s more “anti-employer” decisions.

Robb’s ascension as General Counsel, the agency’s chief prosecutor, along with the Board’s newly comprised 3-2 Republican majority — its first in over a decade — sets the stage for the Board to likely begin the process of overturning some of those decisions toward more “business-friendly” policies. Among the rulings many hope to see reversed under this new regime are the Obama Board’s expansion of the joint employer standard, its decisions barring class-action waivers in employment agreements, and its sometimes draconian interpretations on innocuous workplace rules, to name a few.

Only time will tell which cases Robb and the Office of the General Counsel will use as vehicles to facilitate the anticipated reversals of the Obama Board’s more controversial rulings. But for now, it remains business as usual for employers, as the process of litigating these issues up to the newly comprised Board could take several years.

Stay tuned.

  By: Jaclyn W. Hamlin, Esq.

On October 5, 2017, H.R. 3441, the “Save Local Business Act,” cleared its first hurdle when it passed the House Committee on Education and the Workforce. The bill, which would clarify the definition of “joint employer” under both the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA), passed by a comfortable margin with 23 “yea” votes and 17 “nay” votes.

If passed and signed into law by the President, the bill would clarify that a “person” is a joint employer under both the NLRA and FLSA only where the employer in question “directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment” in relation to an employee. According to the bill, such instances of control include hiring; discharging; determining individual rates of pay and benefits; conducting day-to-day supervision; assigning individual work schedules, positions and/or tasks; and administering discipline.  An entity whose relationship to a particular employee or group of employees is more attenuated would not be considered a joint employer under this standard.

In a fact sheet on the proposed legislation, the House Committee on Education and the Workforce argues that regulators and “activist judges” working during the previous Presidential administration have “discarded settled labor policy and blurred the lines of responsibility for decisions affecting the daily operations of local businesses across the country.” If enacted, the “Save Local Business Act” will walk back regulatory actions and administrative decisions tending to find joint employer status where an entity “indirectly” controlled or “potentially” impacted employees’ daily responsibilities and regular work environment.

The “Save Local Business Act” was introduced by Representative Bradley Byrne, R-AL, on July 27, 2017, and was referred to Committee on the same day. The Subcommittees on Workforce Protection and Health, Employment, Labor and Pensions held hearings in September.  The bill currently has 111 co-sponsors, including 108 Republicans and 3 Democrats.

 

By: Andrew L. Scroggins, Noah A. Finkel, and David S. Baffa

Seyfarth Synopsis:  The NLRB has withdrawn the significant concession it offered at oral argument on the nature of the NLRA rights it seeks to assert in the face of employers’ mandatory arbitration programs.

As noted in our earlier blog post, the Supreme Court heard oral argument on October 2, 2017, on one of the most significant employment law cases in some time, to consider whether to permit employers to use mandatory arbitration programs that contain waivers of collective and class actions.

In the most dramatic moment of the morning, the NLRB’s General Counsel Richard Griffin made a significant admission.[1]

In response to a series of questions by a skeptical Chief Justice Roberts, Griffin agreed that it would not be an unfair labor practice for a mandatory arbitration program to require use of a forum whose rules did not allow class arbitration. Justice Alito quickly realized the significance of this point: “if that’s the rule, you have not achieved very much because, instead of having an agreement that says no class, no class action, not class arbitration, you have an agreement requiring arbitration before the XYZ arbitration association, which has rules that don’t allow class arbitration.” Griffin did not dispute this. He commented that “the provisions of the [NLRA] run to prohibitions against employer restraint.”

Next to the podium was counsel for the employees, Daniel Ortiz of the University of Virginia School of Law. Ortiz did not agree with that concession, thus seeming to highlight a fundamental dissent from the NLRB’s position. This gap was all the more notable for the fact that the Solicitor General already had abandoned the NLRB to side with the employers.

In an unusual development, just one day after the argument, the NLRB’s Griffin sent a short letter to the Court disavowing its argument and adopting the position staked out by Ortiz:

I am writing to correct an inaccurate response I gave at oral argument yesterday in response to the line of questioning by Chief Justice Roberts found at pages 47-50 of the transcript of the oral argument.  My responses, to the extent they indicated any difference from the responses given by employees’ counsel, Mr. Ortiz, to the questions of Chief Justice Roberts found at pages 60-64 of the transcript of the oral argument, were a result of my misunderstanding the Chief Justice’s questions and were inaccurate; Mr. Ortiz correctly stated the Board’s position and there is no disagreement between the Board’s and the employees’ position on the answers to those questions.

Such letters are not unprecedented. Still, it is a remarkable about face. For the justices who already seemed skeptical of the NLRB’s position, this change of position may only serve to highlight that the NLRB is not clear in the reasoning of its position or the effects such reasoning may have if ordered more broadly by the Court to apply to future cases.

[1] The New York Times highlighted Griffin’s concession:

The labor board’s general counsel, Richard F. Griffin Jr., argued for the workers. He made a concession at odds with the position of another lawyer on his side.

Mr. Griffin said that employment contracts could not require workers to give up collective action in arbitration but that the private entities that conduct arbitration could require that cases be pursued one by one.

If that is so, Justice Samuel A. Alito Jr. responded, “you have not achieved very much because, instead of having an agreement that says no class arbitration, you have an agreement requiring arbitration before the XYZ arbitration association, which has rules that don’t allow class arbitration.”

Daniel R. Ortiz, a law professor at the University of Virginia who also argued for the workers, took a different approach…

By: Christopher W. Kelleher, Esq.

Seyfarth Synopsis: After this week’s Senate confirmation, William J. Emanuel becomes the fifth member on the National Labor Relations Board and creates a 3-2 Republican majority. But employers must still play the waiting game to see a change in course from the Obama-era rulings.

The National Labor Relations Board took another big step away from the Obama-era Board composition earlier this week as William J. Emanuel gained Senate approval and was subsequently sworn in as the fifth and final (for now) Board member.  Mr. Emanuel brings extensive management-side experience to the Board, and he will be the third Republican member on the Board, giving Republicans a 3-2 majority over Democrats for the first time in over a decade.

While this may give employers reason to celebrate, on December 16, 2017, Chairman Philip Miscimarra will be stepping down. As we previously reported, President Trump will then have the opportunity to appoint another Board member.

Member Emanuel’s confirmation continues a flurry of activity surrounding the NLRB in recent months. Member Marvin Kaplan was confirmed in August, and President Trump recently nominated Peter Robb to succeed Richard Griffin as NLRB General Counsel.

While we expect to see the new “Trump Board” reverse many Obama-era decisions, it must wait for these issues to “percolate” before it can do so.

By: Marjorie Soto, Esq.

After being reportedly close to nominating retired Jones Day partner Roger King for the role, the White House announced last Friday that President Donald Trump will nominate Peter Robb, a management-side labor and employment attorney from Vermont, as the new NLRB General Counsel. If confirmed, he will replace former President Barack Obama’s current appointee, Richard F. Griffin, Jr., whose term expires this November.

Since 1995, Robb has been with Downs Rachlin Martin, a Vermont-based law firm. Robb represents corporations in all aspects of labor and employment law. Robb has recently published articles critical of the NLRB’s rules designed to speed up the representation election process and of the Board’s recent decisions that have struck down common workplace rules. Robb has experience working for the NLRB. He worked as a NLRB field attorney and Chief Counsel to former Board Member Robert Hunter.

This announcement comes as the Board commences to change to a Republican-majority Board– the first time this has occurred in over a decade. As a result, we expect to see policy shifts in the next upcoming years.

 

  By:  Timothy M. Hoppe, Esq.

Seyfarth Synopsis: With the NBA season opener just over a month away, at least one team could be getting an unexpected influx of free agents. In Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (2017), the Board recently held that the production crew responsible for operating the Timberwolves’ center court video display were employees under the National Labor Relations Act and could form a bargaining unit to negotiate the terms and conditions of their employment.

Facts

The Minnesota Timberwolves, like most professional sports teams, has a large video display in the center of its arena to broadcast live game footage, player statistics, replays, advertisements, and fan favorites like the kiss cam during games. Behind all of these visual effects are sixteen crewmembers who operate video cameras in the arena and direct what video gets displayed during the games.

The Timberwolves maintain a roster of about 51 crewmembers with the skills to operate the video display. The team circulates a game schedule at the beginning of each season and the individual crewmembers decide which, if any, games they will work. Most perform production work for other entities when not working for the Timberwolves. For each game, the team sets the crewmembers’ start time and pays a set fee, which varies based on the game and position crewmembers hold. The team also provides the crewmembers with a basic game plan prior to each game outlining the timing of some of the promotions it wants to broadcast. But the crew maintains significant control over what makes it onto the video display during the game.

In February of 2016 the crewmembers sought to enlist an agent, the International Alliance of Theatrical Stage Employers, to form a union. The team appealed to its referee, the NLRB, claiming that the crewmembers where independent contractors under the Act and, therefore could not unionize. The Regional Director, whistled the crewmembers’ play dead, holding that they were not employees. The crewmembers sought a booth review from the Board.

Board’s Ruling

The Board has long applied common law agency principals to decide if an employee-employer relationship exists. It considers eleven “non-exclusive” factors, none of which is “decisive:” (1) the extent of control by the employer; (2) whether the individual is engaged in a distinct business; (3) the level of supervision from the employer; (4) skills required in the occupation; (5) who provides the tools, equipment, and work place; (6) the length of employees’ employment; (7) method of payment; (8) whether the work is part of the employer’s regular business; (9) whether the parties believe an independent contractor relationship exists; (10) whether the principal is in business; and (11) whether the employee renders services as part of an entrepreneurial business with opportunity for gain or loss.

Two of the Board’s pro-union members used these sprawling factors to overturn the Regional Director’s decision. They acknowledged that crewmembers exhibited some characteristics of independent contractors. The crew retained control over which games they worked, did not receive Timberwolves’ credentials, handbooks or written guidelines, and completed W-9 and 1099 forms for tax purposes. But the majority held that the amount of control the team exerted over the crewmembers, along with the “essential component” crewmembers provided to the team’s business, rendered the crew employees under the Act. The majority emphasized that the team provided guidance to the crew prior to and sometimes during games, and characterized running the video board as “plainly among the [Team’s] central business concerns.” It also noted other things, like the team-dictated start time of each member’s shift, the team-set pay for each game, and the team-provided tools necessary to perform the crewmembers’ jobs.

Chairman Miscimarra cried foul. Also emphasizing the control factor, he noted that the relevant issue was not whether the Timberwolves helped shape the final product that was displayed on the video board by providing a broad outline to the crew; such high level control is a hallmark of any independent contractor relationship. Instead, what should matter is the control over the details of the work. And in this case, he would have held the possession arrow pointed decidedly toward independent contractor status. During each game, crewmembers determine things like which video feeds to broadcast, what shots to capture, and other aspects of the live coverage. Chairman Miscimarra also rejected the majority’s view that the crewmembers’ function was central to the team’s business; without the crew, the team would still play basketball in the arena and the television broadcast would proceed uninterrupted. In Chairman Miscimarra’s opinion, these facts, when combined with things like the crew’s ability to choose their schedules, their per-game payment structure, and lack of any meaningful supervision from the team, “substantially outweighed” any factor supporting employee status.

Employer Takeaways

The decision does not dramatically change the Board’s employee/independent contractor jurisprudence. Instead, it highlights the perils of asking any referee, whether basketball or judicial, to apply an eleven factor test to anything. It is inherently unpredictable and open to the whims of hometown (for Basketball) or political party (for the Board) biases. Nevertheless, it is unlikely that even a more reasonable Board will completely abandon a multi-factor employee test. Therefore, the Timberwolves decision should act as a reminder to employers to carefully analyze their independent contractor relationships and ensure that the contractors retain as much control over the terms and conditions of their employment as business necessity permits.

 

By: Howard M. Wexler, Esq.

As we previously reported (http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/), President Trump nominated two candidates for vacancies on the five-member National Labor Relations Board – William Emanuel and Marvin Kaplan.  The Senate approved Mr. Kaplan to fill one of the vacancies on August 2, 2017 by a 50-48 vote, but has yet to schedule a date to vote on Mr. Emanuel’s appointment.

Just as the Board was about to have its full complement of five members, Chairman Philip Miscimarra, in a letter to President Trump, announced that he will leave the Board when his term expires on December 16, 2017.  Accordingly, even if Mr. Emanuel is confirmed by the Senate, the Board will be back down to four members and President Trump will have the opportunity to appointment another Board member (and Chairperson) to replace Mr. Miscimarra.   In addition,  the term of Richard F. Griffin Jr. as the Board’s general counsel is set to expire in December as well. A Republican appointment to fill his position is likely to follow.

While employers hoped for sweeping changes at the Board with the election of President Trump, especially in connection with some of the Board’s more controversial rulings, such as those dealing with class action waivers in employment agreements, use of an employer’s email systems for union purposes, and unlawful handbook rules, we’ve previously cautioned our readers (http://www.employerlaborrelations.com/2017/05/25/change-to-occur-slowly-at-nlrb/) that such change tends to move more slowly at the Board.  With Chairman Miscimarra’s Beatles-esque decision to “say goodbye as [Mr. Kaplan and Emanuel] say hello“ we expect it to take even longer for the Board to restore some balance to decisions reached over the past eight years that many believe have been the most pro-union in the agency’s history.  Stay tuned!

 

 

NLRB By: Samuel Sverdlov, Esq.

Seyfarth Synopsis: President Trump has nominated a candidate for the final remaining vacancy on the five-member National Labor Relations Board, who, if confirmed, would give the Republicans a 3-2 majority on the NLRB.

Five months after his inauguration, President Donald Trump has finally nominated a candidate for the remaining vacancy on the five-member National Labor Relations Board. The nominee, William Emanuel, is a management-side labor attorney with decades of labor and employment experience. President Trump’s nomination comes just days after the President nominated another Republican lawyer, Marvin Kaplan, to the other vacancy on the NLRB. Currently, the Democrats enjoy a 2-1 majority on the NLRB. However, if confirmed, Emanuel and Kaplan would join fellow Republican, Philip Miscimarra, in a 3-2 majority for Republicans on the NLRB.

President Trump’s recent nominations should give hope to private-sector employers. The business community has roundly criticized the Obama Board for a number of rulings that they argued overreached the Board’s authority, resulting in unreasonably pro-union decisions. With a Republican majority, the NLRB is poised to take a more employer-friendly approach. This is especially critical for employers as the Board may see fit to evaluate high-profile issues such as graduate student employment status, “micro-unit” issues, and “joint employer” relationships.

Emanuel’s nomination would be for a five-year term set to expire on August 27, 2021. At present, no confirmation hearing dates have been made public, and it is unclear whether the candidates will be confirmed before the August recess. As always, we will continue to update you with more information as it becomes available.

Dept. of LaborBy: Ashley Laken, Esq.

Seyfarth Synopsis: Trump Administration DOL issues notice of proposed rulemaking to rescind Obama Administration DOL’s long-embattled final persuader rule. The proposed rule is open for public comments for 60 days.

Last year, we reported extensively on the Department of Labor’s final persuader rule, which was scheduled to take effect on July 1, 2016 and would have required certain public reporting by employers and their consultants (including attorneys). However, as we reported in late June 2016, a federal district court in Texas issued a nationwide preliminary injunction preventing the rule from taking effect.

The most recent development in this saga took place just over a week ago, with the Trump Administration’s DOL issuing a notice of proposed rulemaking to formally rescind the Obama Administration DOL’s final persuader rule. In the notice of proposed rulemaking, the DOL said that it is seeking to rescind the rule so that it can consider in more detail the interaction between the new categories of “indirect” persuasion that were created by the rule and the role of attorneys in advising their clients. The DOL also said that it is proposing to rescind the rule so that, if it elects to change the scope of reportable activity beyond what has been in place since 1962, it can provide as thorough an explanation of its statutory interpretation as possible. The DOL also said that it is proposing to rescind the rule in light of “limited resources and competing priorities.”

The proposed rule was opened for public comments last Monday, and the comment period will last for 60 days. We plan to submit comments in a letter to the DOL, and we would be more than happy to include our readers’ comments in our letter. If you would like us to incorporate any particular points, please reach out to your favorite Seyfarth labor lawyer.