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Early last month, the Occupational Safety and Health Administration (OSHA) proposed the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. The aim is to curb heat related injuries or death which OSHA identifies as “the leading cause of death among all hazardous weather conditions in the United States.” The proposal places new responsibilities on employers: establishing heat thresholds, developing Heat Injury and Illness Prevention Plans, regularly monitoring temperatures, and establishing safety measures when heat thresholds are met. This rule is yet to be finalized however, it is a sign of what’s to come. The standard applies to all employers except for the following: Work activities for which there is no reasonable expectation of exposure at or above the initial heat trigger. Short duration employee exposures at or above the initial heat trigger of 15 minutes or less in any 60-minute period. Organizations whose primary function is the performance of firefighting and other certain emergency services. Work activities performed in indoor work areas or vehicles where air conditioning consistently keeps the ambient temperature below 80°F. Telework (work from home). Sedentary work activities at indoor work areas that only involve some combination of the following: sitting, occasional standing and walking for brief periods of time, and occasional lifting of objects weighing less than 10 pounds. Heat Thresholds There are two heat thresholds which will trigger employer action: An “initial heat trigger” means a heat index of 80°F or a wet bulb globe temperature (defined below) equal to the National Institute for Occupational Safety and Health (NIOSH) Recommended Alert Limit; and A “high heat trigger” means a heat index of 90°F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit. The “heat index” is calculated by measuring the ambient temperature and humidity. Wet bulb globe temperature is a heat metric that considers ambient temperature, humidity, radiant heat from sunlight or artificial heat sources and air movement. Employers may choose either method of measuring the temperature. Heat Injury and Illness Prevention Plan (HIIPP) Requirements If an employer does not fall under the exceptions, it must develop a HIIPP with the input of non-managerial employees and their representatives for occasions when the heat threshold is surpassed. This plan may vary on the worksite but must be written if the employer has more than 10 employees and use a language employees will understand. The HIIPP must contain: A comprehensive list of the type of work activities covered by the HIIPP Policies and procedures needed to remain compliant with the standard. Identification of which heat metric the employer will use heat index or wet bulb globe temperature. A plan for when the heat threshold is met. Along with creating the HIIPP, employers must designate one or more “heat safety coordinators” responsible for implementing and monitoring the HIIPP. The HIIPP must be reviewed at least annually or whenever a heat related injury or illness results in death, days off work, medical treatment exceeding first aid, or loss of consciousness. Employers must seek input from non-managerial employees and their representatives during any reviews or updates. The definition of “representative” is not defined; if this is broadly defined, this could be a major complexity employers must face. Identifying Heat Hazards Employers must monitor heat conditions at outdoor work areas by: Monitoring temperatures at a sufficient frequency; and Track heat index forecasts or Measure the heat index or wet bulb globe temperature at or as close as possible to the work areas. For indoor work areas, employers must: Identify work areas where there is an expectation that employees will be exposed to heat at or above the initial heat trigger; and Create a monitoring plan covering each identified work area and include this work area in the HIIPP. Employers must evaluate affected work areas and update their monitoring plan whenever there is a change in production processes or a substantial increase to the outdoor temperature. The heat metric employers choose will affect the thresholds. If no heat metric is specified, the heat metric will be the heat index value. Employers are exempt from monitoring if they assume the temperature is at or above both the initial and high heat trigger, in which case they must follow the controls below. Control Measures When Heat Triggers are Met When the initial heat trigger is met, employers must: Provide cool accessible drinking water of sufficient quantity (1 quart per employee per hour). Provide break areas at outdoor worksites with natural shade, artificial shade, or air conditioning (if in an enclosed space). Provide break areas at indoor worksites with air conditioning or increased air movement, and if necessary de-humidification. For indoor work areas, provide air conditioning or have increased air movement, and if necessary de-humidification. In cases of radiant heat sources, other measures must be taken (e.g., shielding/barriers and isolating heat sources). Provide employees a minimum 15-minute paid rest break in break areas at least every two hours (a paid or unpaid meal break may count as a rest break). Allow and encourage employees to take paid rest breaks to prevent overheating. At ambient temperatures above 102° F, evaluate humidity to determine if fan use is harmful. Provide acclimatization plans for new employees or employees who have been away for more than 2 weeks. Maintain effective two-way communication between management and employees. Implement a system to observe signs and symptoms of heat related problems (e.g., a Buddy system). When the high heat trigger is met, employers are additionally required to: Provide employees with hazard notifications prior to the work shift or upon determining the high heat trigger is met which includes: the importance of drinking water, employees right to take rest breaks, how to seek help in a heat emergency, and the location of break areas and water. Place warning signs at indoor work areas with ambient temperatures exceeding 102° F. Other Requirements Training: all employees and supervisors expected to perform work above the heat thresholds must be trained before starting such work and annually. What’s Next? The rule is yet to be published in the Federal Register. Once this happens, there will be a 120-day comment period when all members of the public may offer OSHA their opinion about the rule. Whether this rule comes to fruition may also depend on which party wins the White House. Furthermore, if finalized this rule would likely be challenged in the courts, which now have more discretion to overrule agency rules following the US Supreme court case of Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce (overturning the Chevron deference decision). Employers should review their heat illness prevention policies to maintain compliance with regulations. If you have questions, call competent labor and employment counsel. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
As we
In a significant ruling, the Supreme Court has overturned the NLRB and Sixth (and other) Circuit’s approach to evaluating preliminary injunctions under Section 10(j) of the National Labor Relations Act (“NLRA”). This decision, stemming from the high-profile case of Starbucks v. McKinney, again declares the power of the courts over federal executive branch agencies. Background The case originated when Starbucks terminated seven employees allegedly for their pro-union stance. The National Labor Relations Board (“NLRB”) sought a preliminary injunction under Section 10(j) to force Starbucks to rehire those employees until the underlying charge of illegality was resolved. The federal District Court granted the injunction. On appeal, the Sixth Circuit upheld the injunction applying its unique two-part test used by the NLRB. This test requires demonstrating “reasonable cause to believe that unfair labor practices have occurred,” and that injunctive relief is “just and proper.” Circuit Split and the Winter Test The Sixth Circuit’s test has been a point of contention due to its deviation from the more widely adopted Winter test, which is used in other judicial circuits for assessing all preliminary injunctions. The Winter test, named after the 2008 Supreme Court case Winter v. Natural Resources Defense Council, Inc., uses a four-part analysis. It requires plaintiffs to clearly demonstrate: They are likely to succeed on the merits; They are likely to suffer irreparable harm without preliminary relief; The balance of equities tips in their favor; and An injunction is in the public interest. This discrepancy in the appropriate test led to a circuit split. The Supreme Court ended the split. Supreme Court’s Decision In its ruling, the Supreme Court rejected the Sixth Circuit’s approach, emphasizing the importance of a uniform standard across all jurisdictions. The Court favored the Winter test, arguing it is more in accord with the traditional, rigorous framework for preliminary injunctions. The Court reasoned that, A preliminary injunction is an extraordinary equitable remedy that is never awarded as of right . . . . The default rule is that a plaintiff seeking a preliminary injunction must make a clear showing that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect a practice with a background of several hundred years of history. (Citations and quotations removed.) Taking it further, the Court declared, “absent a clear command from Congress, courts must adhere to the traditional four-factor test.” After analyzing the text of 10(j), the Court concluded there was no Congressional intent to deviate. Implications of the Ruling The Supreme Court’s decision has significant implications for employers, employees, labor unions, and the NLRB. By endorsing the Winter test, the Court has (in some jurisdictions) raised the bar for obtaining preliminary injunctions under Section 10(j), potentially making it more challenging for the NLRB to secure temporary relief in cases of alleged unfair labor practices. Additionally, the Supreme Court’s ruling is a clear message: even if the NLRB endorses liberal labor law interpretations, the conservative judiciary remains in place as a check. This flexing of judicial muscle is a trend we have recently seen from the Court and expect it to continue for years to come. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
On May 28, 2024, Governor Ned Lamont signed legislation expanding Connecticut’s 2011 Sick Leave Law. The new legislation is effective on January 1st, 2025. The law covers more employees, expands the reasons under which employees may use paid sick leave, and reduces the required hours to accrue paid sick leave. Who is covered by the new law? Currently under Connecticut law, employers with more than 50 employees in specific retail and service occupations must provide their employees with up to 40 hours of paid sick leave annually. The new law expands the type of eligible worker to almost every occupation (not just retail or service occupations). It also expands the number of employers who must comply by reducing the number of employees they must employ to be covered. It is important to note that seasonal employees and certain other temporary workers remain exempt. The threshold number of employees required for coverage is gradually being lowered. Starting January 1, 2025, employers with 25 employees must provide their employees with paid sick leave: this drops to 11 employees on January 1, 2026, and one employee on January 1, 2027. When can employees use paid sick leave? Governor Lamont declared the current law leaves “broad categories… unprotected….” In response, the legislation has extended the definition of a family member to include more than that person’s minor children. This expansion includes “spouse, sibling, child, grandparent, grandchild or parent of an employee or an individual related to the employee by blood or affinity whose close association the employee shows to be equivalent to those family relationships.” The legislation also addresses the impact COVID-19 had on employees, allowing paid sick leave to be taken in instances related to declarations of a public health emergency. How do employees accrue paid sick days? Eligible employees will now accrue one hour of paid sick leave for every 30 hours worked, accruing up to 40 hours per year. This is a ten-hour reduction from the previous one hour for every 40 hours worked. Employers may grant more time off or allow accrual at a faster rate. Limits on Employers’ Control over the Use of Sick Time In Connecticut and across the nation, generic Paid Time Off policies have replaced the old-fashioned sick leave, personal leave, vacation, and many other forms of paid time off. As a result, sick leave mandates are allowed to be covered by PTO. Thus, when a company offers four weeks of PTO, they are really offering three weeks of PTO and one week of sick time. The question we address here is if employers can put any limitations on how employees use their sick time. When Connecticut’s Sick Leave law was first effective in 1997, employers had the right to mandate that employees use their sick leave when they take other unpaid leaves. The employers’ motivation was to limit how much total time off employees were allowed. That all changed on January 1, 2022. In 2022, the law was amended to require employers leave at least two weeks of PTO to be used at the total discretion of the employee. This change was missed by most employers. To be sure you don’t run afoul of this law, employers should check their policies to ensure the mandated use of sick leave for all unpaid leaves is not their policy and not in their handbooks. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Following a July 3rd Texas federal District Court decision, the
For five decades, the southern United States has been an attractive location for automakers to open plants thanks to generous tax breaks and cheaper, non-union labor. However, after decades of failing to unionize automakers in the South, the United Auto Workers dealt a serious blow to that model by winning a landslide union victory at Volkswagen. In an effort to fight back, three southern states have gotten creative: they passed laws barring companies from receiving state grants, loans and tax incentives if the company voluntarily recognizes a union or voluntarily provides unions with employee information. The laws also allow the government to claw back incentive payments after they were made. While these laws are very similar, each law has unique nuances. If you are in an impacted state, you should seek local counsel. In 2023, Tennessee was the first state to pass such a law. This year, Georgia and Alabama followed suit. So why this push? In 2023, the American Legislative Exchange Council (“ALEC”), a nonprofit organization of conservative state legislators and private sector representatives who draft and share model legislation for distribution among state governments, adopted Tennessee’s law as model legislation. In fact, the primary sponsor of Tennessee’s bill was recognized as an ALEC Policy Champion in March 2023. ALEC’s push comes as voluntary recognition of unions gains popularity as an alternative to fighting unions. We recently saw this with the high-profile Ben & Jerry’s voluntary recognition. Will this Southern strategy work to push back against growing union successes? Time will tell. Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
In March 2022, Florida enacted the politically charged Individual Freedom Act, informally known as the STOP WOKE (Wrongs to Our Kids and Employees) Act. Less than two years later, the U.S. Court of Appeals of the Eleventh Circuit blocked the enforcement of the Act on the grounds it violates employers’ right to free speech. This decision directly impacts employers in the Eleventh Circuit and will have a ripple effect on employers nationally. How did the Individual Freedom Act (Stop WOKE Act) affect employers? The Act attempted to prevent employers from mandating training or meetings for employees which “promote” a “certain set of beliefs” the state “found offensive” and discriminatory. There are eight prohibited beliefs each relating to race, color, sex, and national origin. According to the Act, employers must not teach the following: Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously. An individual’s moral character or status as either privileged or oppressed is determined by his or her race, color, sex, or national origin. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect due to race, color, sex, or national origin. An individual, based on his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin. An individual, based on his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, and were committed in the past by other members of the same race, color, sex, or national origin. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin. Employers still had the ability to mandate employees attend sessions that either refute these concepts or present them in an “objective manner without endorsement.” This dictates how an employer deals with its employees and is particularly limiting in how employers address discrimination training. Employers who failed to adhere to the law were liable for “serious financial penalties—back pay, compensatory damages, and up to $100,000 in punitive damages, plus attorney’s fees—on top of injunctive relief.” The Ruling – Honeyfund.com Inc. v. Governor [2024] In March 2024, the U.S. Court of Appeals of the Eleventh Circuit served an injunction preventing enforcement of the Act. Despite the state insisting the Act banned conduct rather than speech, the court ruled the Act unlawfully violated the First Amendment’s right of free speech by barring speech based on its content and penalizing certain viewpoints. While certain categories of speech such as “obscenity, fighting words, incitement, and the like” are traditionally unprotected, the court pointed out that “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” Florida is keen to appeal against the decision. What does this mean for employers? Regardless of one’s opinions on the matter, this can be viewed positively from an employer’s standpoint. Employers in the private sector can control speech in the workplace, and this ruling confirms their autonomy will continue. Whether or not the rest of the country will follow suit remains to be seen. This case, in tandem with the US Supreme Court’s ruling to ban race based affirmative action, signals today’s intense political climate is likely to continue to impact how employer diversity, equity and inclusion (DEI) initiatives are approached. Employers should continue to review their DEI initiatives, ensuring they are in line with the latest precedents. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Last March, a federal judge ruled The Minority Business Development Agency (MBDA) was discriminating on the basis of race by only offering grants to minority-owned businesses. This ruling is one in a string of recent court decisions that have declared race-based preference systems illegal. As the crusade to gut affirmative action continues, challenges to employers’ DEI initiatives continue to rise. Activist groups, investors, state attorney generals, and employees are all attacking such programs on multiple fronts. As an employer, you must tread carefully. Background In Nuziard v. Minority Business Development Agency, the MBDA was sued by three white business owners (“Plaintiffs”) who sought grants. The Plaintiffs were deemed ineligible for the grants because they were not “socially or economically disadvantaged individual[s].” While this phrase seems race-neutral, the term “socially or economically disadvantaged individual” was defined to mean “an individual who has been subjected to racial or ethnic prejudice or cultural bias.” Certain racial groups were automatically included in the MBDA’s definition, including: (i) Blacks or African Americans; (ii) Hispanics or Latinos; (iii) American Indians or Alaska Natives; (iv) Asians; and (v) Native Hawaiians or other Pacific Islanders. Unlisted racial groups were presumptively ineligible. The judge focused on the presumption that the Plaintiffs were not disadvantaged merely because of their race. This presumption, the judge ruled, was race discrimination and, therefore, illegal. The judge barred the MBDA from continuing its racial classification system. The Ripple On its face, Nuziard has no legal impact on employers. But some players are pushing for affirmative action to be struck down everywhere — including in the workplace. The principal lawyer representing the Plaintiffs, Dan Lennington, said, “We hope this is a precedent to eliminate all [affirmative action] . . .. Automatically labeling a group of people as disadvantaged is ridiculous.” And it seems Mr. Lennington may be on to something. Recently, Jonathan Bresser, a white, male, law student at DePaul University College of Law, filed a complaint against the Chicago Bears. Bresser applied to be the Chicago Bears’ “Legal Diversity Fellow”. Bresser was rejected from the program, which was only open to “people of color and/or female law students.” Bresser’s lawsuit is just an example of the many legal challenges by conservative groups to stop corporate diversity, equity, and inclusion initiatives following last year’s US Supreme Court decision curtailing the use of race as a factor in college admissions. Discrimination is Still Discrimination (but you may need to prove it) While affirmative action is on rocky footing, the law is clear about one thing: discrimination laws prohibit discriminating against “majority” identities, such as white males. In fact, reverse discrimination claims are on the rise. But that’s about all that is clear. Courts across the country are conflicted on how discrimination laws apply to “reverse discrimination” claims. In reverse discrimination claims, some courts apply heightened evidentiary burdens for plaintiffs from majority groups. In 1981, the United States Court of Appeals for the D.C. Circuit became the first court to adopt the “background circumstances” rule. This rule requires plaintiffs from majority groups to show background circumstances that substantiate that the defendant is “that unusual employer who discriminates against the majority.” In total, five Circuits have adopted the “background circumstances” rule. Two other circuits expressly rejected it. The remaining five never addressed the background circumstances rule and treat discrimination claims from majority groups the same as claims from plaintiffs in other groups. Weathering the Chaos As new cases on affirmative action and reverse discrimination muddy the waters, the risk of maintaining DEI programs has increased. Companies should internally assess their risk tolerance, assess their DEI programs, and develop a responsive strategy. Not all DEI programs are made equal. Your DEI program could be protecting your company or exposing it to substantial risk. You should work with skilled counsel to evaluate your situation.
In New York’s
In Muldrow v. City of St. Louis, the Supreme Court tackled a very important question: under Title VII (the federal civil rights law), when is a job transfer discrimination? The Background Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.S. § 2000e-2(a)(1) (emphasis added). Under Title VII, certain job transfers fall within the “otherwise to discriminate” catch-all. But not all job transfers are illegal. Most circuit courts have read in the requirement that a job transfer be “significant.” This standard yielded some surprising results: An engineering technician is transferred to a new job site— a 14-by-22-foot wind tunnel. The court rules the transfer does not have a “significant detrimental effect.” Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999). A shipping worker is transferred to a night shift position; a court decides the assignment does not “constitute a significant change in employment.” Daniels v. UPS, 701 F.3d 620 (10th Cir. 2012). A school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties was not “significant.” Cole v. Wake County Board of Education, 834 F. App’x 820 (4th Cir. 2021). The Ruling In Muldrow, Muldrow alleged she was transferred to a lesser position because she is a woman. Both parties agree that the transfer implicated “terms” and “conditions” of Muldrow’s employment, changing the what, where, and when of her police work. The lower courts ruled the job transfer was not discrimination because the changes were not “significant.” The Supreme Court rejected the lower court’s analysis—asserting that “significant” is not statutorily derived and, therefore, is an improper inquiry. Moreover, “neither [the Statute] nor any other [law] say anything about how much worse [the transfer must be]. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones.” What did the Supreme Court offer in the place of “significant?” The Court explained, “[t]o make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.” With the stroke of a keyboard, the past 60 years of common law was vacated, and Muldrow’s case remanded. What This Means Underlying this case is the concept that illegal discrimination must involve not only discrimination, but discrimination that causes harm. Lower courts will now duke it out over what is “some harm.” However, the result is clear: it is no longer safe to assume job transfers rarely cause any “harm.” If you are considering transferring an employee who may claim discrimination, you should evaluate the “harm” caused by the transfer. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
On March 8, 2024, the U.S. District Court for the Eastern District of Texas struck down the new joint employer rule created by the National Labor Relations Board (the “NLRB” or “Board”). As we
Last month, the Boston Regional Office of the National Labor Relations Board (the “NLRB”) ruled that members of the Dartmouth men’s basketball team are employees and as such have the right to unionize. Wasting no time, yesterday, the Dartmouth men’s basketball team voted 13-2 to unionize. Many educational industry onlookers saw this as the necessary next step in granting employment status to all college athletes – not just the national powerhouses. Although the decision is expected to be appealed, there is no doubt the decision, if upheld, will mark a seismic shift in collegiate athletics. Why? Because if Dartmouth men’s basketball players are employees, then arguably all collegiate athletes, both men and women, in all divisions, should also be considered employees eligible for unionization and maybe even compensation. Why Does this Sound Familiar? For those of you who follow college athletics closely or who happen to be closet labor and employment law buffs, you will know the recent Dartmouth NLRB decision is not unprecedented. In fact, a similar ruling was issued nearly a decade ago when the Northwestern football players were determined (by a different Regional Office of the NLRB) to be employees and able to unionize. However, back then, a unanimous NLRB overturned that decision. One of the reasons the NLRB overturned the lower decision was because the NLRB only has jurisdiction over private employers. Although Northwestern is a private school it competes in the Big Ten athletic conference, which, except for Northwestern, was comprised exclusively of public universities at that time. The NLRB found it should not exercise jurisdiction over the matter because permitting one school in the conference to collectively bargain (and therefore pay their athletes) and not the others would be detrimental to college athletics because the playing field would no longer be level among different schools. While some found this argument weak, it carried the day. What’s Next? Fortunately for the Dartmouth men’s basketball team, the above argument will not be an issue this time as Dartmouth competes in a conference composed entirely of private schools, the Ivy League. Likely even more important, the NLRB’s General Counsel (chief prosecutor), Jennifer Abruzzo, has previously come out strongly in favor of student-athletes being treated as employees protected under the National Labor Relations Act. Despite all of this, the process will not be a slam dunk for the basketball team (sorry, we could not help ourselves). While the next step is a hearing before a pro-union, Biden-appointed NLRB, the following step(s) will be the federal courts and what happens there is uncertain. Both Dartmouth and the NCAA have come out strongly against the decision insisting that their athletes are not employees but rather unpaid amateur students. The NCAA also predicts dire consequences for college athletics if athletes become subject to the NLRA (and other federal and state employment laws). For example, if athletes are “employees” under the wage and hour laws, they are entitled to pay- which is a direct violation of the NCAA’s prohibition against “pay for play.” As a result, we expect an exhaustive legal battle that will take years to play out. Unfortunately for Dartmouth and the NCAA, these legal challenges will work their way through a court system that recently delivered a major win to college athletes in an antitrust case that went all the way to the Supreme Court. If that is where this latest case ends up, it will be heard before many of the same justices who unanimously found against the NCAA when it decided the NCAA’s imposition of strict limits on compensation for student-athletes for education-related benefits violated antitrust law. While the appeal is pending, we expect to see an influx of other petitions filed by other student-athletes to have their teams unionized. Union activity on college campuses is already high; this decision will likely just make it higher. If the student-athletes are ultimately successful, these actions could lead to a complete upheaval of athletic programs on college campuses. Imagine if colleges can give their star athletes massive salaries. The smaller programs will almost never be able to attract top talent which means only the richest few will be competitive. We may have seen our last Cinderella story. Closing Thoughts The time seems right for the NLRB to act on this issue. With the strong pro-labor tailwinds currently in Washington, D.C., it seems likelier than not that this ruling will be upheld by the NLRB. What happens on appeal to the federal courts is anyone’s guess and could ultimately be decided by who wins the White House later this year. We will monitor this issue closely and provide our readers with updates as they become available. Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
On February 21, 2024, the National Labor Relations Board (“NLRB”) ruled that Home Depot violated the National Labor Relations Act (“NLRA”) by terminating an employee who refused to remove the hand-drawn letters “BLM” (Black Lives Matter) from their work apron. This employee was one of several employees who concurrently drew BLM on their work aprons. Notably, the employees began drawing BLM on their aprons after complaining about racial discrimination at Home Depot. The NLRA protects employees’ right to partake in “concerted activities” aimed at “mutual aid or protection,” irrespective of union representation. In this case, the Board decided the employee’s refusal to remove BLM markings constituted a “concerted” action. The Board emphasized that the BLM markings were in response to allegations of racial discrimination at Home Depot. Because of this, the BLM markings were viewed as an effort to communicate collective grievances to Home Depot management. Given that racial discrimination affects all employees’ working conditions, the action was deemed “for mutual aid or protection.” The Whole Foods Counterexample In contrast to this case, in May 2020, Whole Foods informed its employees that wearing BLM attire violated the company’s dress code and was not permitted. In this case, the Board ruled that wearing BLM attire did not constitute legally protected activity. Why? The BLM attire lacked a direct link to efforts aimed at enhancing employees’ working conditions. The judge highlighted, “There is no evidence indicating any employee concerns, complaints, or grievances regarding ‘racial inequality’ or racially-based discrimination at Whole Foods Market before or during the adoption of BLM messaging . . . . The evidence convinces me that the employer simply sought to avoid controversy and conflict within its stores, which it believed would arise from BLM messaging.” Now what? Employers aiming to uphold uniform or clothing regulations should exercise careful consideration. When employees unite behind a symbol to voice their workplace grievances, regardless of its broader political implications, that symbol is likely protected under the NLRA. Conversely, if employees wear a symbol entirely unrelated to the workplace that is merely social commentary, employers can prohibit such conduct. Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
In our prior article, the details of the new test for determining who is an employee and who is an independent contractor was laid out
Effective March 12, 2024, New York Labor Law prohibits employers from requiring employees and job applicants to provide information about their personal accounts. If you think this sounds familiar, you are right. This idea has been in place in various states for years; now New York is joining in! Under the new legislation, “personal accounts” are broadly defined. It means “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles used exclusively for personal purposes.” Specifically, Employers may not require employees or job applicants to: disclose the username, password, or “other authentication information” for accessing personal accounts; access a “personal account in the presence of the employer;” or “reproduce in any manner photographs, videos, or other information contained within a personal account.” However, nothing in the law prevents employers from: Accepting voluntary friend requests sent from an employee or applicant (although such actions may not be wise!); Accessing public social media accounts; Accessing information about an employee or applicant that can be obtained without any access information; Accessing information “for the purposes of obtaining reports of misconduct or investigating misconduct, photographs, video, messages, or other information that is voluntarily shared by an employee, client, or other third party that the employee subject to such report or investigation has voluntarily given access to contained within such employee’s personal account.” If your strategy is to argue that in response to an employer request, the applicant or employee “voluntarily” gave permission, that may be a very tough burden to meet! Employers who ask applicants or employees to share their social media accounts should proceed with caution. This area of law in New York is new and quickly evolving. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Attention all Paycheck Protection Program (“PPP”) loan borrowers, the Federal Bureau of Investigation is combing through PPP loan records to identify borrowers who committed fraud related to the program, and they are not alone. The U.S. Small Business Administration (the “SBA”) is auditing all PPP loans of $2 million or more, and the Department of Justice (the “DOJ”) is investigating and prosecuting a number of fraud cases related to the misuse of PPP funds. How Did We Get Here? Many of us will recall how the PPP saved millions of small businesses from financial ruin. The program was a cornerstone of the CARES Act, which provided $2.2 trillion in economic aid in the face of the COVID-19 pandemic. The program was designed to provide a financial life raft to employers trying to survive the pandemic. One of the few requirements of PPP was a minimum of 60% of each loan needed to be used for payroll expenses, with the balance being used for certain other related business expenses. Now we are learning the program was wrought with fraud. It appears to be one of the greatest victims of frauds ever perpetrated on the federal government with billions of dollars being improperly used. In fact, the SBA estimates of the 11.8 million PPP loans totaling $800 billion there was in excess of $64 billion in fraud across 17% of the loans. This has led to thousands of investigations with the DOJ bringing charges against hundreds of individuals with many more cases pending. Just the Beginning The SBA estimates there will be thousands more investigations and related prosecutions. This issue has gotten so much attention that Congress has increased the statute of limitations for prosecuting cases of fraud related to PPP borrowing to ten (10) years. Also, the government is investigating these cases even though the loan has been forgiven. Closing Thoughts If you’re wondering if you should worry, the answer is it depends. If you are part of that urban legend of someone who took out the loan, and used the proceeds to buy a Ferrari while closing down your business, you should be worried. If you are part of the approximate 80% who followed the rules, you should be fine. If you question where you stand, call competent counsel so you can sleep peacefully at night. Our hope is the investigations will be fair, abusers get caught and the well-intentioned are fine, but only time will tell. Brody and Associates regularly advises management on complying with the latest local, state, and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
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