NLRB General Counsel Authorizes Complaints Against Both McDonald’s Franchisees and Franchisor

The Office of the General Counsel of the National Labor Relations Board (“NLRB”) has been investigating charges against McDonald’s franchisees that they violated their employees’ labor rights in connection with employee protests.  Yesterday, July 29, 2014, the General Counsel authorized complaints against both the McDonald’s franchisees and, startlingly, their franchisor for those alleged violations. 

The General Counsel’s decision permits the McDonald’s franchisor to be named as a “joint employer” in the complaints.  Therefore, the franchisor could be held responsible if a franchisee committed a violation of the labor laws.  If sustained by an administrative law judge and/or the NLRB, this decision would represent a significant expansion of the “joint employer” theory that could have wide-ranging implications not only for the fast-food industry but also for businesses like hotels and car dealerships.  Connell Foley’s labor and employment law attorneys will continue to track the developments of this case.

EEOC Issues New Guidance on Pregnancy Discrimination

On July 14, 2014, the EEOC issued Enforcement Guidance (“Guidance”) and Questions and Answers (“Q&As”) addressing pregnancy discrimination in the workplace.  The Guidance explains the EEOC’s interpretations of the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) as they pertain to pregnant workers.

The PDA prohibits discrimination on the basis of an employee’s past, current, or potential pregnancy, childbirth, or related medical conditions, including lactation.  The PDA also requires employers to treat pregnant women the same as others who are similar in their ability or inability to work.  Therefore, pregnant employees must receive equal access to benefits, such as light duty, leave, and health insurance.

Under the ADA, employers are prohibited from discriminating on the basis of an employee’s disability.  Pregnancy itself is not a disability under the ADA, but some pregnant workers might have pregnancy-related impairments that qualify as disabilities.  The ADA requires employers to provide reasonable accommodations for employees who are disabled, including those with pregnancy-related conditions.

The Guidance is persuasive, but not binding, authority.  The United States Supreme Court is set to hear Young v. United Parcel Service, Inc., in which it will decide “whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”  The Court’s decision could affect the persuasiveness of the Guidance on this issue in the future.

Although this Guidance is generally consistent with New Jersey’s state laws against pregnancy discrimination, it could impact some employers’ policies on pregnancy accommodations.  Connell Foley’s labor and employment law attorneys welcome the opportunity to review your company’s workplace policies. 

U.S. Supreme Court Invalidates NLRB Decisions

On June 26, 2014, the United States Supreme Court issued a 9-0 decision in NLRB v. Noel Canning, invalidating recess NLRB appointments that President Obama made on January 4, 2012 and potentially invalidating all NLRB decisions from January 2012 through July 2013.

In January 2012, the Senate was holding “pro forma” sessions every three days and, during that time, President Obama believed the Senate was “in recess.”  Therefore, under the Constitution’s Recess Appointment Clause, President Obama exercised his authority to appoint members to the NLRB.  Those members went on to make decisions with sweeping changes to the NLRB case law.

In its June 26 opinion, the U.S. Supreme Court concluded that the Senate was not in recess in January 2012 and, thus, the President lacked the power to make the NLRB recess appointments.  In so holding, the Court found that the NLRB was not operating with the requisite three-member quorum when making decisions from 2012 through 2013.  The Court, therefore, invalidated all of the NLRB’s decisions from January 2012 through July 2013, when it established a proper membership.

The decision affects employers as it raises uncertainty concerning the validity of NLRB decisions, rulings, and administrative actions issued during this time period, although the NLRB has already started to revisit these decisions on a case-by-case basis.  Connell Foley’s labor and employment law attorneys will track the NLRB’s response and will be available to assist employers in understanding how to respond to these new decisions.

Assembly Advances “Ban the Box” Bill

On June 26, 2014, the New Jersey Assembly passed the “Opportunity to Compete Act.”  The Legislature is joining a national trend to create “ban the box” legislation that would eliminate the check box on job applications asking whether the applicant has been convicted of a crime.

The bill would prohibit certain employers from inquiring as to an applicant’s criminal record during the “initial application process.”  Therefore, an employer would only be permitted to ask, either orally or in writing, about the applicant’s criminal background after the initial interview with the applicant.  Failure to comply with the legislation’s mandates would result in civil penalties.

Both Houses have now passed the bill, which is pending Governor Christie’s review and signature.  Connell Foley’s labor and employment law attorneys will continue to track this pending legislation.

New York Passes Bill Eliminating Wage Notice Requirement

On June 19, 2014, the New York Legislature passed a bill that would eliminate the requirement that employers provide annual wage notices to employees.  Currently, under the Wage Theft Prevention Act, employers must provide wage notices to all employees by February 1 of each year.  The bill would eliminate that mandate starting in 2015.

The bill, however, would not modify the requirement that employers provide a wage notice to new employees upon their hire.  It also would increase the penalties for an employer’s failure to provide such wage statements.

If Governor Cuomo signs the bill, it will take effect sixty days after it is signed.  Please feel free to contact Connell Foley’s labor and employment law attorneys if you have questions about the bill or any other wage and hour law issue.

NJ Supreme Court Reaffirms Standard for CEPA Claims

New Jersey’s Conscientious Employee Protection Act (“CEPA”), protects and encourages employees to report illegal or unethical workplace activities without threat of retaliation by the employer. On June 16, 2014, the Supreme Court of New Jersey issued a landmark opinion involving the CEPA.  In Hitesman v. Bridgeway, Inc., the Court found that the plaintiff’s CEPA claim failed because he could not point to a binding source of public policy under which he could receive whistleblower protection.

The plaintiff was a nurse at a nursing home who claimed he was fired for blowing the whistle over improper patient care at the nursing facility. Specifically, he claimed that, pursuant to the American Nursing Association Code of Ethics (“ANA Code”), he reported a rash of gastrointestinal and respiratory infections that broke out among the nursing home’s patients. The plaintiff disagreed with the manner in which the outbreak was handled. As a result of the report, he was retaliated against and terminated.

The Court, in affirming the Appellate Division’s decision, held that the ANA Code “does not constitute a source of law or other authority” that establishes standards for infection control at nursing homes.  It reasoned that claims asserted under CEPA’s “improper quality of patient care” provision must be premised on a “reasonable belief” that an employer has violated a rule, law, declaratory ruling adopted pursuant to law, regulation, or professional code of ethics governing the profession or delineating between acceptable and unacceptable conduct for the employer in question.  

In order to assert that an employer’s conduct is incompatible with a “clear mandate of public policy concerning the public health,” the employee must be able to cite to authority that governs the standards for the employer’s conduct.  The ANA Code does not govern the standards for a nursing home’s conduct and, therefore, cannot serve as the source of authority for a CEPA claim.  Instead, the ANA Code “directs a nurse’s action in response to deficient patient care in a nursing home, but provides no standard by which such a deficiency can be ascertained.”

The Hitesman decision is significant insofar as the New Jersey Supreme Court reaffirmed that in order for an employee to have a viable CEPA claim regarding improper quality of patient care or conduct incompatible with a clear mandate of public policy the employee’s complaints must actually implicate an activity, policy or practice of the employer. Also, and the employee is required to present evidence to support a substantial connection between the adverse employment action he or she is  complaining of and the employee’s alleged whistleblowing activity. 

Newark’s Paid Sick Leave Ordinance In Effect

The City of Newark’s paid sick leave ordinance took effect this past Saturday, June 21, 2014.  As we previously posted on April 1, 2014, the City of Newark passed an ordinance mandating certain employers to provide paid sick leave to their employees.  Employers are required to notify employees of their rights by providing individual written notice to employees and posting a notice of rights in the workplace, although the City has not yet issued a model notice.

For more information about the ordinance, refer to Newark’s webpage or contact Connell Foley’s labor and employment law attorneys.