Legislative Director Update 7/03/18
A brief Legislative Director update below.
- Supreme Court: The U.S. Supreme Court term that ended June 2018 included decisions on many topics important to workplace law, including class action waivers in employment arbitration agreements, public-sector “agency shop” arrangements, and the Fair Labor Standards Act’s “automobile dealer” overtime exemption. The Court also examined who is a “whistleblower” protected by the Dodd-Frank Act, President Trump’s travel ban executive order and the federal bar on states legalizing sports betting. The conclusion of the term also brought news that Justice Anthony Kennedy is retiring from the Court, effective July 31, 2018. Justice Kennedy was confirmed to the Supreme Court in February 1988 by a vote of 97-0. His departure will leave a vacancy on the nine-member court. The President is expected to announce his nominee to the Supreme Court in the next week. Once announced, we will provide insight on how the nominee has ruled on workplace law decisions. You can read more here with regard to the recent decisions from the Supreme Court.
- State Law: New Hampshire became the 20th state in the country to prohibit discrimination of all forms based upon gender identity on June 8, 2018. The law goes into effect on July 8, 2018. New Hampshire joins, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington, along with Washington D.C., to include gender identity and/or gender expression in their employment anti-discrimination statutes. As you may recall, the last legislative session in Nebraska, this was also a proposed bill. I would anticipate a similar bill in Nebraska in January 2019.
- Agency Update: The Department of Labor has confirmed the gig economy is alive and well, but the number of workers has increased only slightly in the past decade. The DOL released its much anticipated “Contingent and Alternative Employment Arrangements Survey” report in June, 2018. The number of U.S. workers classified as “contingent” including those in the gig economy increased from 5.7M to 5.9M according to the report. However, the percentage of the workforce made up of contingent workers decreased to 3.8% from 4.1% in 2005. You can read more here.
- Disability Leave Management: A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. (McNeil v. Union Pacific RR). On May 21, 2018, the Court granted the employer’s motion for summary judgment determining that it did not have to grant an emergency dispatcher’s request to be exempt from overtime to accommodate her depression and anxiety because working overtime in emergency situations was an essential element of her job. You can read more here.
- NLRB Update: In June, the NLRB general Counsel, Peter Robb, issued a detailed 20-page Memorandum to the NLRB Regional Offices entitled “Guidance on Handbook Rules Post-Boeing.” In the Boeing case, the NLRB established a new standard for evaluating employer rules that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule. The Guidance is a good read if you are responsible for reviewing and revising your employee handbook. You can read more here and also access the guidance.