Employment Law This Week December 11, 2017: NLRB GC Memo, Third Travel Ban, Paid Leave Credit for Employers, ERISA Disability Benefits Rule Delayed
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This week’s stories include ...
(1) New Memo from NLRB GC Peter Robb
Our top story: A new direction at the National Labor Relations Board (“NLRB” or “Board”) under General Counsel (GC) Peter Robb. Robb has issued a memo outlining which cases must be submitted by regional offices to the Division of Advice for guidance. The memo indicates areas in which the new GC will likely ask the NLRB to overturn Obama-era decisions. Robb specifically mentions the joint-employer definition that was expanded in Browning-Ferris and the Purple Communications ruling that employees have a right to use their employers’ email systems for union activity, among other controversial issues. Don Krueger, from Epstein Becker Green, has more:
“The General Counsel's memo clearly signals that there will be a dramatic and, for employers, welcome change at the Board, and that the General Counsel will take an active role in setting the Board's agenda. The memo was crucial to understanding the Board's priorities going forward, but the proposed changes in case law will take time. The memo rescinds seven guidance memos and initiatives issued by his Democratic predecessors and outlines priority issues for the General Counsel's review, including Obama Board cases issued over the last eight years that overruled long-standing Board precedent and involved one or more dissents, issues that have not yet been decided by the Board, or issues that are of general interest to the General Counsel.”
(2) Supreme Court Lifts Injunctions on Third Travel Ban
The Supreme Court has stayed two nationwide injunctions on President Trump’s travel ban. As a result, the third iteration of the ban is now in effect, at least temporarily. The ban restricts travelers from six predominantly Muslim countries, along with North Korea and Venezuela, from entering the United States. Waivers may be granted, and the ban does not apply to green card holders or dual nationals traveling on a passport from a country that is not on the list. This action by the Supreme Court does not resolve the legal challenges to the ban but allows it to take effect while the U.S. Courts of Appeals for the Fourth and Ninth Circuits review the challenges. Both courts heard arguments on the issue last week.
(3) Paid Leave Credit to Employers Expected in Tax Bill
Paid leave credits included in the tax bill. As the House and Senate negotiate tax reform, experts believe that a measure offering tax credits to companies that provide paid family and medical leave to employees is likely to survive. Some critics have noted that the credit would only be in effect for two years before it’s up for re-evaluation, and they question whether it will incentivize more companies to offer paid leave or just give a tax cut to companies already providing the benefit.
(4) Final Rule on ERISA Disability Benefits Delayed
The final rule on Employee Retirement Income Security Act of 1974 (ERISA) disability benefits has been delayed. Last year, the Department of Labor (DOL) released a final rule on claims and appeals for ERISA plans that provide disability benefits. The rule was set to go into effect January 1 of next year, but it will now be effective as of April 1, 2018. The rule adds safeguards and protections, but stakeholders have argued that it will increase plan costs and administrative expenses. The DOL will use the extra time to consider these and other comments.
(5) Tip of the Week
Barbara Harris, Senior Labor and Employment Editor at Thomson Reuters Practical Law, is here with some advice on drafting restrictive covenants and confidentiality agreements:
“When drafting restrictive covenants, it's really important to be wary of relying on old precedence or forms. There have been many recent developments in the law that make forms that were drafted even one or two years ago outdated already. For example, the Defend Trade Secrets Act, which was passed in 2016, requires employers to include a notice of whistleblower immunity in their non-compete agreements or any agreements containing confidentiality provisions. Confidentiality provisions are another area where these agreements have to be evolving and changing, because they've come under serious scrutiny from many regulatory agencies that are charged with enforcing the whistleblower laws, such as the SEC, FINRA, and OSHA. To avoid potentially substantial penalties, employers should include carve-outs allowing employees to report suspected wrongdoing to these agencies. The bottom line is your old forms probably don't cover any of these issues adequately, so don't rely on them.”