Republican-Led NLRB Likely to Change Obama-Era Policies

For the first time in years the National Labor Relations Board (NLRB), is back under Republican control with the swearing in of William Emanuel on September 26, 2017.  With a Republican majority, we will likely see sweeping change in NLRB decisions and policy over the next few years.  The new majority will be able to reverse many Obama-era rulings and pave the way for more business-friendly NLRB policies.

At the top of the list for the majority Republican NLRB Board will be issues including joint employment, quickie elections, and other rulings that have changed the legal landscape for employers.  Below are some of the more impactful changes we expect to see in the coming years.

Joint Employment

In 2015, a majority Democrat NLRB Board expanded the standard for determining what companies qualify as joint employers that share in unfair labor practice liability.  The decision faced fierce criticism from the business community.  The NLRB will likely reverse this decision and return to traditional standards of joint liability that are less expansive.  Employers that are franchisees or a part of a network of businesses certainly will look forward to this change.

Lutheran Heritage Decision

The 2004 Lutheran Heritage decision predates President Obama, but is still a likely target for the Republican-majority Board.  In that decision the NLRB determined that work rules and employee handbook provisions are unlawful if employees would reasonably construe them to prohibit protected concerted activities under the National Labor Relations Act.  Following that decision, the Board has ruled that many commonplace handbook policies run afoul of the NLRA since they have a chilling effect on employees engaging in protected concerted activity.  In the aftermath of Lutheran Heritage, the NLRB involved itself with many private, non-union employers.  We expect a substantial claw-back from that type of NLRB activism.

Quickie Union Elections

In 2015, the NLRB took a rare step and issued a number of changes to NLRB election procedures that streamlined the process for union election campaigns.  The rule is often referred to as the “ambush election rule,” as it cut short the time for employers to make their case to workers about unionization.  Previously, employers were given significantly more time to wage a campaign to oppose unionization.  We will likely see a return to the previous standard, allotting more time to employers.

“Micro” Bargaining Units

In a related area, the Board is likely to retreat from recent decisions (such as Home Health Care), that permit unions to organize distinct groups of employees, permitting unions to get a foot in the door by selecting the group most interest in unionization.  The likelihood is that the Board will revert to previous standards giving the employer more opportunities to expand a proposed unit, so long as there is a community of interested among the employees.

Article Prepared By:

Brian Shenker, Labor & Employment Lawyer

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Expanded EEO-1 Data Reporting Requirements Have Been Suspended

Employers who have been concerned about complying with expanded EEO-1 data reporting requirements can breathe a sigh of relief. The White House Office of Management and Budget (“OMB”) recently announced that the new reporting requirements, which were to be included in reports due March 31, 2018, are being suspended.

The requirements in question were to apply to private employers with at least 100 employees, as well as covered federal contractors, to report on employees’ wages and hours worked — in addition to reporting the race, ethnicity, and gender of their employees (which demographic information has long been required). The Equal Employment Opportunity Commission (EEOC), upon announcing the new, now-suspended requirements back in September 2016, hailed the requirements as a “significant step forward in addressing discriminatory pay practices.” (EEOC Press Release, September 29, 2016).

The OMB, under the Trump administration, has a different view of the requirements. According to the OMB, the EEOC’s estimates of the burden the reporting would impose on employers did not account for all the relevant facts and were erroneous.

Since the OMB’s decision was announced, two Trump administration nominees to the EEOC have stated that they intend to propose new requirements for employee pay data collection in the future. Employers, stay tuned.

Article Prepared by:

Lisa Skruck, Labor & Employment Law Attorney

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Can Businesses Require Employees To Get Flu Shots?

As the weather turns cooler and the leaves begin to change, our thoughts turn to pumpkin pie, hay rides, apple picking, and….flu season.

Yes, it’s that time of year again. Time for the annual pilgrimage to your doctor or local pharmacy for a vaccination against the flu virus. But what if, not only do you plan to be vaccinated yourself, you intend to require your employees to get the shot as well? Does the law allow that?

The answer is a qualified yes. Generally, employers can mandate that employees receive the flu shot, but they must accommodate employees who opt out based on sincerely held religious beliefs, unless such accommodation would pose an undue hardship for the employer. Accommodation of religious belief is a requirement of Title VII of the Civil Rights Act of 1964. Thus, in the absence of undue hardship, an employee whose religion prohibits vaccines must be excused from a flu shot requirement. Employers are well advised to take religious accommodation seriously, especially given a recent uptick in EEOC cases alleging that employers have violated Title VII by failing to accommodate religious opposition to the flu shot.

That being said, if an employee objects to the vaccine based on grounds other than a sincerely held religious belief, such an objection need not be accommodated. For example, if an employee simply believes that vaccines are harmful (such as those who claim a link between autism and childhood vaccines) , the employer is not obligated to excuse that employee from a company-wide vaccine requirement.

The desire by some employers to make the flu vaccine mandatory for staff is understandable. According to the Center for Disease Control and Prevention, U.S. businesses lose approximately $7 billion a year in sick days and lost productivity each year due to employees’ contracting the flu.

Nevertheless, any employer considering implementing a mandatory flu shot policy should consider it carefully. Would an incentive program yield similar results without running the risk of a discrimination charge? Rather than requiring flu shots, would making them more accessible increase the rate of vaccination among your employees? For example, employers might consider enlisting the services of a mobile flu shot clinic to provide vaccinations on the employer’s premises.

If you have questions about employee flu shot policies, do not wait to reach out to one of our human resources professionals. Flu season is around the bend.


Article Prepared by:

Lisa Skruck, Labor & Employment Law Attorney

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Talent Acquisition is Dead; Talent Attraction is the Future! Register for the workshop today!


November 1, 2017
8:30 AM to 10:30 AM
1.5 HRCI & 1.5 PDC credits

Learn how to develop a recruitment plan that will help  keep recruitment costs in check and maximize the effectiveness of your efforts.  We’ll cover:

How to recruit using social media
The best ways to attract the different generations
Ensuring compliant interview questions in today’s litigious society

Join Mary Simmons, Director, HR Consulting, Portnoy, Messinger, Pearl & Associates, Inc. and Lisa Skruck, Associate, Labor & Employment Group, SilvermanAcampora LLP, as they discuss the challenges involved in finding qualified candidates and building a talent pipeline.

Adelphi University – Hauppauge Center
55 Kennedy Drive
Hauppauge, NY 11788

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Are You Ready? New York Employees Are Getting More Paid Time Off

New York Paid Family Leave is here to stay.  Are you ready?  Is your company ready?  Join our workshop to find out more.

October 18, 2017
8:30 AM to 10:30 AM
1.5 HRCI & 1.5 PDC credits

In this seminar, you will learn:

When and if you should start payroll deductions to fund the NYPFL.
Your obligations to educate your employees on the new Act.
How you should address NYPFL in your employee handbook.
Which employees are eligible for the NYCPST.
How to avoid a costly audit by the NYC Consumer Affairs or the DOL.
What notices and postings must be in your work location on both laws.

Join Mary Simmons, Director, HR Consulting, Portnoy, Messinger, Pearl & Associates, Inc. and Keith Frank, Employment Law Attorney, SilvermanAcampora, LLP, as they discuss the New York State Paid Family Leave Act and the New York City Paid Sick Time law.

Dionysos Restaurant
23-15 31st Street
Astoria, NY 11105
$35 (includes breakfast)

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Navigating the Road of Affirmative Action and OFCCP Compliance

November 15, 2017
8:30 AM to 4:00 PM
6.5 HRCI & 6.5 PDC credits

This interactive full-day workshop will provide hands-on, practical advice to assist government contractors and subcontractors to navigate and address the OFCCP regulations. Topics discussed in-depth during this full-day workshop will include:

OFCCP – What’s Changed and What Hasn’t
Understanding the Basics of a Compliant AAP
VEVRAA and Section 503 – The Focus Continues
Your Documentation – Defend You or Sink You?
Data, Data, Data – What Can It Reveal about Your Company?
“Job Seeker” or “Applicant” – Define it, Control it, Defend it
OFCCP Audit Letter – Alive and Well until June 2019
Compensation Analysis – Do it! Just Do It the Right Way

Join the team from Portnoy, Messinger, Pearl & Associates, Inc. – Grace M. Conti, Executive VP and Director, Affirmative Action Compliance Department, Maureen Bradley, Affirmative Action/HR Consultant, and Christine M. Wittneben, PHR, SHRM-CP / HR Consultant – along with Keith Frank, Esq., Co-Chair of the Labor & Employment Group; Chair of Insurance Group, SilvermanAcampora LLP, for this interactive full-day workshop will provide hands-on, practical advice to assist government contractors and subcontractors to navigate and address the OFCCP regulations.

Comfort Inn
24 Oak Drive at Jericho Turnpike
Syosset, NY 11791
Includes continental breakfast, lunch, and a workbook.

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FMLA, DBL, WC, ADA, NYPFL – How does it all work? Join our HR workshop to find out.

October 18, 2017 (rescheduled from September 11)
8:30 AM to 10:30 AM
1.5 HRCI & 1.5 PDC credits

In this workshop, attendees will learn:

Who is eligible for FMLA?
What are the employer’s responsibilities?
How to avoid FMLA liabilities.
How to comply with the ADA.
To coordinate FMLA with NY State Disability, Workers Compensation and the NY Paid Family Leave Act.

Join Barbara DeMatteo, Director, HR Consulting, Portnoy, Messinger, Pearl & Associates, Inc. and David Mahoney, Employment Law Attorney, SilvermanAcampora LLP, as they discuss NY State Disability, Workers Compensation, NY Paid Family Leave Act and more.

Adelphi University – Hauppauge Center
55 Kennedy Drive
Hauppauge, NY 11788



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United States Department of Labor announced filing extension to accommodate needs for those impacted by Hurricanes

The U.S. Department of Labor Veterans’ Employment and Training service (VETS) has announced a 45-day extension to the 2017 filing deadline for this year’s Vets 4212 report. The deadline has been extended from September 30, 2017 to November 15, 2017. The extension was announced on the VETS website with the following explanation:

“NOTICE: In order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, Federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely Report or failure to comply with Federal regulations”.

As a reminder, the VETS-4212 Report is to be completed by all nonexempt Federal contractors and subcontractors with a contract or subcontract in the amount of $150,000 or more with any department or agency of the United States for the procurement of personal property or non-personal services.

If you have any questions please contact PMP at 516-921-3400.


Article Link here

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You’re Fired! How to Minimize Risk and Avoid Litigation

October 4th, 2017

8:30 AM to 10:30 AM
1.5 HRCI & 1.5 PDC credits

Join Rita DiStefano, Director, HR Consulting, Portnoy, Messinger, Pearl & Associates, Inc. and Brian Shenker, Employment Law Attorney, SilvermanAcampora, LLP, as they discuss how to follow the proper termination procedures to avoid legal ramifications.

Adelphi University – Hauppauge Center
55 Kennedy Drive
Hauppauge, NY 11788

Register Now!



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Can an Invitation to Connect on LinkedIn Violate a Nonsolicitation Agreement?

To protect their hard-earned resources, many employers maintain nonsolicitation agreements with key employees. Generally, such agreements prohibit current and former employees from poaching the company’s clients and/or employees, particularly in the event an employee moves to a competitor. While such agreements may not be enforceable if they are overbroad or otherwise go beyond the applicable legal parameters (which vary from state to state), properly drafted nonsolicitation agreements can protect a company’s valuable assets – including confidential information, client base, and experienced employees.

But in today’s social media-dominated world, many employers – and employees – are unsure what constitutes solicitation. To be sure, if a former employee of XYZ company calls his old colleague, still employed at XYZ, and invites him to come interview for a position with his new employer, that is an example of classic solicitation. But what if the former employee merely “friend requests” his old colleague on Facebook, or invites him to connect on LinkedIn? Does that constitute solicitation?

With the rise of social media in recent years, courts have begun addressing these issues. In a decision issued August 7, 2017, an Illinois appellate court considered whether a former Bankers Life branch manager had violated his nonsolicitation agreement when he sent LinkedIn requests to several Bankers Life employees. The requests contained no information about the former employee’s new employer; they merely invited recipients to connect with him on LinkedIn. But Bankers Life complained that, because the employee had posted a job opening with his new employer on his LinkedIn page, the invitations constituted solicitation, as a recipient could view the job posting if he or she accepted the invitation. The court disagreed, holding that the LinkedIn invitations did not violate the applicable nonsolicitation agreement.

The Bankers Life decision is one of several recent cases addressing the interplay between LinkedIn and restrictive covenant agreements. In a 2014 case, for example, a Connecticut court held that an individual who had updated his LinkedIn profile to reflect a new job with a competitor of his former employer, and encouraged his contacts via LinkedIn post to “check out” a website he had created for the new employer, did not violate his nonsolicitation agreement with the former employer. Other decisions, however, have found certain social media activity to violate restrictive covenants.

Due to the relative youth of online social media, the impact of social media activity on restrictive covenants remains an emerging issue. If you have questions about the social media use of your employees or former employees, please contact PMP.

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