Monthly Archives: April 2018
On April 12, 2018, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued the first Opinion Letters since the Bush administration, as well as a new Fact Sheet. The Obama administration formally abandoned Opinion Letters in 2010, but Secretary of Labor Alexander Acosta has restored the practice of issuing these guidance documents. Opinion Letters, as Secretary Acosta states in the DOL’s April 12 press release, are meant to explain “how an agency will apply the law to a particular set of facts,” with the goal of increasing employer compliance with the Fair Labor Standards Act (“FLSA”) and other laws. Not only do Opinion Letters clarify the law, but pursuant to Section 10 of the Portal-to-Portal Act, they provide a complete affirmative defense to all monetary liability if an employer can plead and prove it acted “in good faith in conformity with and in reliance on” an Opinion Letter. 29 U.S.C. § 259; see also 29 C.F.R. Part 790. For these reasons, employers should study these and all forthcoming Opinion Letters closely.
Two western states, Utah and Idaho, have recently passed or amended their statutes dealing with post-employment restrictions on competition. This continues a national trend in which new state law in this area is increasingly the product of legislative action rather than judicial interpretation. Thus, even if an employer has no current presence in these states, it is worth one’s time to understand these changes because they could soon be coming your way.
Foster v QBE European Underwriting Services (Australia) Pty Ltd as managing agent for Lloyd’s Syndicate 386  NSWSC 440
West Virginia Gov. Jim Justice recently signed into law HB 4268, the “Co-Tenancy Modernization and Majority Protection Act.” A victory for landowners and the natural gas industry, the bill will take effect July 1, 2018 and essentially acts as a forced pooling law similar to that already in effect in Pennsylvania.
The federal Equal Pay Act (“EPA”) mandates equal pay for equal work regardless of sex. Employers that pay men and women different wages for the same work are strictly liable for violations of the EPA unless they can show that one or more of four exceptions apply to explain the wage disparity. The four statutory exceptions are seniority, merit, the quantity or quality of the employee’s work, or “any other factor other than sex.” The Ninth Circuit recently took up the question of the meaning of the fourth, catchall exception – “any factor other than sex” – in order to consider whether an employer may rely, in whole or in part, on an employee’s prior salary as a basis for explaining a pay differential in Aileen Rizo v. Jim Yovino.
On March 21, 2018, Washington Governor Jay Inslee signed bill SB 5996 (the “Law”), which prohibits employers from requiring as a condition of employment that employees sign a nondisclosure agreement preventing them from discussing workplace sexual harassment or sexual assault. The Law goes into effect on June 7, 2018.
DOJ Antitrust Division Follows Through on Warnings Regarding Antitrust Scrutiny of Employer Non-Solicitation Agreements
On April 3, 2018, the Department of Justice Antitrust Division (“DOJ”) announced that it had entered into a settlement with two of the world’s largest railroad equipment manufacturers resolving a lawsuit alleging the defendant employers had entered into unlawful “no-poach” agreements. The DOJ’s Complaint, captioned U.S. v. Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp., 18-cv-00747 (D. D.C.) alleges that three employers referred to as Knorr, Wabtec and Faively, unlawfully promised one another “not to solicit, recruit, hire without approval, or otherwise compete for employees.” It goes on to allege “[t]hese no-poach agreements denied American rail industry workers access to better job opportunities, restricted their mobility, and deprived them of competitively significant information that they could have used to negotiate better terms of employment.”
On Wednesday, the Senate narrowly confirmed John Ring, a management-side labor attorney from Morgan Lewis & Bockius LLP, to the National Labor Relations Board (“NLRB” or the “Board”). With this vote, Ring fills the last remaining open seat on the Board, which was previously held by former Chairman Philip Miscimarra. Ring’s term will expire on December 16, 2022. The confirmation vote of 50-48 was largely down party lines, with only two Democrats voting in favor of Ring’s confirmation. The strong opposition from the Democrats is likely due to the perceived efforts of the Trump administration to install pro-business members to the Board. Several prominent Democratic senators, including Patty Murray (D-Wash.) and Elizabeth Warren (D-Mass.), made very critical statements about Ring ahead of the vote.