A breaking news article was posted this afternoon on Law360.com, providing welcome news, and at least temporary relief, to employers and their labor attorneys regarding the Department of Labor’s new “persuader rule.”  Following is the pertinent text of the article:

Law360, New York (June 27, 2016, 3:15 PM ET) -- A Texas federal judge on Monday entered a nationwide injunction barring the U.S. Department of Labor from enforcing its so-called “persuader” rule, saying it threatens employers’ rights to secure legal advice about union organization.

U.S. District Judge Sam Cummings found the DOL likely exceeded its authority in passing the rule, which requires labor relations consultants, including attorneys, to file disclosure reports specifying the nature of “persuader activities” undertaken with employers. The rule interprets the Labor Management Reporting and Disclosure Act of 1959, which regulates labor unions' internal affairs and their officials' relationships with employers.

Smoking tobacco in enclosed spaces in the workplace has been generally prohibited in California since 1995.  This ban included requirements that employers take reasonable steps to prevent smoking by non-employees if non-employees are regularly permitted access to the workplace.  Employers have also been required to post clear and prominent signs stating that smoking is prohibited throughout the building or structure.  This includes posting a sign at each entrance stating “No smoking.” If employers permit smoking in certain designated areas, employers have been required to post at sign at each entrance stating “Smoking is prohibited except in designated areas.” 

These longstanding restrictions did not, however, reach all workplaces.  It was also mostly limited to cigarette use.  Several new bills signed into law recently will eliminate most of those exceptions and will expand the prohibitions to encompass increasingly popular cigarette alternatives like vaping and e-cigarettes. 

In the case Resilient Floor Covering Pension Trust Fund v. Michael’s Floor Covering, Inc., the Ninth Circuit recently reversed a lower court’s ruling and outlined a test for determining successor liability for contributions to pension plans. The Multiemployer Pension Plan Amendments Act (“MPPAA”) states that if an employer completely withdraws from a multiemployer pension plan, the employer is liable for the amount of unfunded benefits that have already vested. This is known as withdrawal liability.

The Ninth Circuit held that a successor employer, like Defendant Michael’s Floor Covering, Inc. (“Michael’s”), can be subject to withdrawal liability under the MPPAA so long as: 1) the successor took over the business with notice of the liability; and 2) there is “significant continuity in the business operations” between the original company and its successor. The second factor is by far the most important factor to the analysis. However, the MPPAA provides an exception from liability for employers in the building and construction industries if they have ceased operations entirely for at least five years.

In the second half of 2015, Netflix announced it would begin offering employees who become new parents unlimited paid maternity/paternity leave for one year. Employees will be allowed to take off as much time as they want during the first twelve months after a child’s birth or adoption.

Under its new policy, Netflix allows employees on parental leave the luxury to continue part-time or full-time employment and to take leave as needed during the first year after their child’s birth or adoption, all of which is paid at their current salary on the company’s dime.  Netflix, wanting to attract and retain the most “talented” employees, believes this policy allows employees to feel supported by the company during an important change in their lives and help them return to work more focused and dedicated.

New Policy and Posting Requirements

Effective April 1, 2016, employers must comply with new policy and notice requirements related to Pregnancy Disability Leave (“PDL”):

  • New Posters: Previous law required employers with 5-49 employees to post PDL Notice A and employers with 50 or more employees to post PDL Notice B.
          -“Your Rights and Obligations as a Pregnant Employee” replaces Notice A
          -“Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave” replaces Notice B
  • New Handout: When an employee provides notice of pregnancy or the need for leave or reasonable accommodation related to pregnancy, the employer must provide the employee with the new “Your Rights and Obligations as a Pregnant Employee” Notice
  • New Company Policy: Employers are now required to either:
          (1) Update their handbooks to include notice of PDL rights, or
          (2) Send employees a notice of such rights on an annual basis.

New Posters and Handouts can be accessed directly from the Department of Industrial Relations, http://www.dfeh.ca.gov/Publications_Publications.htm.

California regulations and Wage Orders 1 through 16 require that working employees “shall be provided with suitable seats when the nature of the work reasonably permits the use of seats...” The California Supreme Court recently helped clarify what this language means in Kilby v. CVS Pharmacy, Inc.

First, the court looked at the regulations’ phrase “nature of the work” in determining whether seats should be provided. The Court held that in looking at whether the nature of the work permits the use of seats, employers should not look to the full range of tasks an individual performs throughout the day. The Court rejected this “holistic” look at an employee’s duties; instead, the employer must look to the employee’s total tasks and duties performed at a given location. In other words, if an employee spends two-thirds of his day stocking shelves, and one-third of his day working at a cash register, the employer is not to consider the shelf-stocking in analyzing whether it is reasonable to give a seat for the time spent at the cash register.

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