Legal Updates

The NLRB Slams a Non-Union Financial Services Employer Over Its Commonplace Employee Manual Rules

Jonathan L. ShapiroLauri F. RasnickIn a recent decision, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) ruled that Quicken Loans’s (the “Company”) Detroit, Michigan branch (along with five related entities) violated the National Labor Relations Act (“NLRA”) by using and disseminating an employee manual in its non-union workplace that the ALJ concluded interfered with employees’ rights under the NLRA.  This was yet another case in which the NLRB took aim against Quicken Loans for adopting work rules and/or policies that an ALJ found would “chill” non-unionized employees in the exercise of their rights under the NLRA.  As we previously discussed in another blog post, in March 2016, the NLRB found that the Company’s branch in Scottsdale, Arizona violated the NLRA by implementing unlawful work rules after one of its bankers used profanity and complained about a client in an office restroom.

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India Proposes New Guidelines for Biosimilars/Vaccines

The Central Drugs Standard Control Organization (“CDSCO”) has released draft guidelines in an effort to streamline the regulatory process for granting marketing permission to similar vaccines and other biosimilars in India. The proposed revised Guidelines on Similar Biologics, 2016 (“Draft Guidelines”) seek to supplement the earlier “Guidelines on Similar Biologics: Regulatory Requirements for Marketing Authorization in India” (“2012 Guidelines”). 

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China Legal Update – China Labor and Employment Law Newsletter

立法动态 Legislative Updates

☞国务院办公厅发布《关于加强外国人永久居留服务管理的意见》

国务院办公厅于2016年2月18日发布《关于加强外国人永久居留服务管理的意见》(下称“《意见》”)。该《意见》主要提出要推动建立以市场为导向的外籍人才永久居留申请标准,进一步便利外籍人才申请永久居留。《意见》还提出要调整各类永久居留申请情形,放宽优秀留学生等在华工作限制,扩大签发对象范围,使更多在华工作的外国人有资格申请永久居留。该《意见》同时还进一步明确了永久居留外国人在出入境、就业、购房、办理金融业务、申领驾照、子女入学、交通出行、住宿登记、社会保险等方面可以享受与中国公民的同等待遇。

General Office of the State Council Releases the Opinions on Strengthening the Management of Permanent Residence Service for Foreigners

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Legal Updates 2016-04-25 17:00:00

On February 17, 2016 the Volgo-Vyatskiy District Commercial Court has published the decision in caseNo. А43-14334/2015.

Under the auspices of the case, the Antitrust department of Nizhny Novgorod region filed a claim against the Government of Nizhny Novgorod region challenging its Decree No. 891 dated on December 17, 2014 “On competence of public enterprise Nizhny Novgorod Pharmacy”.

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Invalid Appointment Did Not Invalidate Union Election, Says Third Circuit

Two years ago, as we discussed here and here, in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the U.S. Supreme Court held unconstitutional President Obama’s January 2012 recess appointments of Members Block, Flynn and Griffin to the National Labor Relations Board (“Board” or “NLRB”). The decision cast into doubt the validity of hundreds of NLRB orders and official actions.

Recently, in Advanced Disposal Services East Inc. v. NLRB, decided April 21, 2016, the employer, Advanced Disposal Services, unsuccessfully attempted to invalidate actions taken by Regional Director Dennis Walsh by arguing the invalid recess appointments meant the Board lacked a quorum when it appointed Walsh as a Regional Director for Philadelphia based Region 4. Advanced claimed Walsh’s appointment was therefore invalid, and he lacked authority to oversee the election involving Advanced’s employees in which those employees elected to be represented by the Teamsters Local No. 384 by a vote of 60-58. Because Walsh’s actions facilitating that election were beyond his power, the election was invalid. Following the Board’s certification of the bargaining unit, Advanced refused to bargain with the union, drawing an unfair labor practice charge.

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Employers Urged to Invest In Wellbeing of Employees

Employers are losing up to 27 days of productive time per employee each year as a result of high stress and lack of physical activity, new research has revealed.

The study, which was conducted by VitalityHealth, Mercer, the University of Cambridge and RAND Europe, found that productivity varies enormously between industries, with some sectors losing almost 27 days of productive time per employee compared to a national average of 23.5 days.

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Limitations on Motions to Dismiss in FINRA Arbitration

There are advantages to financial institutions in resolving disputes with investors through arbitration under the auspices of the Financial Industry Regulatory Authority (FINRA) rather than in court. These include streamlined procedures, reduced discovery costs, faster decisions, and finality. There are, however, important procedural issues to consider when approaching FINRA arbitrations, one of which is the near-total absence of a defendant’s ability to move for dismissal of claims before trial.

FINRA’s arbitration rules state that motions to dismiss prior to trial are discouraged. Although this mindset exists at many arbitration bodies, FINRA has codified this policy and, indeed, has taken it a step further.

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Weak HR Departments May Leave Startups Vulnerable to Lawsuits

We recently had the pleasure of being interviewed by Julianne Tveten of Motherboard, for her article “HR Comes Last at Startups, and Women Pay the Price.”

The article raises some important issues for startup founders and investors.  In particular, as we discuss, a delay in establishing HR policies may inadvertently draw claims of harassment in the workplace.

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Restrictive Covenant Keys: Choice of Law, Forum Selection Provisions

Because the law concerning the enforceability of post-employment restrictive covenants varies from state to state, a company’s ability to prevent a former employee from working for a competitor or soliciting the company’s customers or employees often turns on the law governing the agreement. In some states, such as California, non-compete agreements essentially are unenforceable outside the sale-of-business context because of the state’s strong public policy against such agreements. Other states, such as New York, are more willing to enforce post-employment restrictions to the extent they are necessary to protect an employer’s legitimate interests (for example, customer relationships), do not impose undue hardship on the employee, and are not injurious to the public.

Consequently, choice of law is often critical to the enforcement of a restrictive covenant. In 2015, however, New York’s highest court, the Court of Appeals, refused to enforce a choice of law provision in a restrictive covenant agreement because the chosen law offended New York public policy.

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Managing the Very Real Risks of FLSA Class Action Lawsuits

Class action lawsuits by employees and independent contractors asserting claims under the Fair Labor Standards Act (FLSA) continue to plague employers — and show no sign of leveling off, let alone decreasing. Moreover, some strategies that employers have relied upon for protection have become increasingly ineffective, making compliance even more important.

For example, arbitration policies requiring employees to waive their class action rights had been an effective tool in curbing employee class actions. However, the National Labor Relations Board (NLRB) has recently issued rulings that mandatory arbitration policies may violate the National Labor Relations Act (NLRA) — even if they have “opt-out” provisions allowing employees to preserve their class action rights outside of arbitration and to file administrative charges. When striking down mandatory arbitration policies, the NLRB has also ordered employers to notify current and former employees that the mandatory policy had been rescinded or revised and to provide a copy of any revised policy.

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