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Employment & Labor Relations Law

Practice Points

What you need to know in a quick-to-read format. Find all of the Employment & Labor Relations Law Committee’s practice points in this archive.


Antitrust Laws in the Workplace: Increased Enforcement and Advice for Employers
By Jerry M. Cutler – December 11, 2022
Employers should familiarize themselves with the antitrust implications of their employment practices and understand options to mitigate the risk of running afoul of antitrust laws.

Independent Contractor Classification
By Jerry M. Cutler – July 5, 2022
The Biden administration has advocated for a different approach to clarify what defines an independent contractor.

Employment and Labor Law Update: State Legislative Developments
By Jerry M. Cutler – March 31, 2022
With state legislatures becoming increasingly active, practitioners should carefully review these recent developments.


NLRB Issues Guidance on COVID-19 Vaccination Requirements
By Jerry M. Cutler – December 6, 2021
A board memorandum addresses the pandemic in the context of the vaccination and testing protocols established by OSHA’s recent emergency temporary standard.

Proposed Expansion of the NLRB’s Remedial Authority
By Jerry M. Cutler – December 3, 2021
The board is considering whether to award additional monetary relief to employees who have been unlawfully discharged, laid off, or subjected to discrimination by their employers.


SCOTUS Validates Employer’s Right to Require Class- and Collective-Action Waivers
By Thomas J. McGoey and Kindall C. James – May 22, 2018
The U.S. Supreme Court has ruled that contracts requiring individualized arbitration of employment-related disputes are enforceable and do not violate section 7 of the NLRA.


NLRB Reverses Course on Standard for Evaluating Employee Handbook Rules
By Rachel Adams Ladeau – December 19, 2017
The Boeing Company decision overrules the 13-year-old standard established in Lutheran Heritage.

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

The Whoopi Goldberg Rule: Say No to Confidentiality
By Charla Bizios Stevens – October 17, 2017
It is time for business to stand up, admit that there is a problem, and be part of the solution.

Massachusetts High Court Allows Employee to Sue for Medical-Marijuana Firing
By Adam M. Hamel – July 19, 2017
This decision marks the first time that a court has found for the employee in a medical-marijuana case.

EEOC Publishes Final Pay Data Changes to EEO-1 Report
By Mickey Silberman, K. Joy Chin, and Stephanie E. Lewis – January 17, 2017
The EEOC and OFCCP plans to monitor and test employer data and investigate the pay practices of those employers whose data suggests indefensible pay disparities.


Tips for Building Your Practice: Employment Law
By Charla Bizios Stevens – December 17, 2016
Strategies to put you on the path you want to be on.

Specialization to Make Your Law Practice Special
By Steve Fretzin – November 22, 2016
As the number of attorneys in the marketplace continues to grow, it is becoming more important to differentiate yourself. One of the best ways to do this is through specialization.

Navigating the Defend Trade Secrets Act
By Clifford R. Atlas and John A. Snyder – August 31, 2016
The DTSA may provide a new, meaningful alternative to state-court litigation when seeking to protect trade secrets and related unfair competition.

Notice Required for Termination under USERRA
By Trish Higgins – August 19, 2016
Human resources representatives and supervisors need to be aware that when it comes to terminating reemployed veterans, neither non-discrimination nor good cause is sufficient.

Title VII Defendant Need Not Obtain Favorable Judgment on Merits to Be "Prevailing Party"
By John Stock – June 8, 2016
The U.S. Supreme Court recently clarified the issue.

EEOC Issues Nationwide Procedures on Position Statements
By John Snyder – May 18, 2016
These procedures, along with the EEOC’s Digital Charge System, make significant changes in some jurisdictions, while in essence formalizing existing practices in others.

What Utah Employers Need to Know About H.B. 251: Post-Employment Restrictions Act
By Mark O. Morris and Jordan Lee – March 30, 2016
The bill limits the scope of post-employment restrictive covenants entered into on or after May 10, 2016, and could likely have an impact on enforcement of older non-compete agreements as well.

An Employer Tool for the DOL's New Overtime Rule
By Gary R. Wheeler – March 2, 2016
With a little planning and execution, employers can avoid at least some of the unpleasant effects of the new rule.

First Circuit Affirms HHS Is Not "Employer" of Terminated Subcontractor
By John Stock – January 5, 2016
The court applied the joint-employer doctrine in its opinion.


Facebook Comments May Constitute "Protected Concerted Activity" under NLRA
By John Stock – November 9, 2015
The Second Circuit affirms the NLRB’s ruling in Triple Play.

What Does It Mean to "Delete" a Customer's Personal Information?
By Damon W. Silver – September 9, 2015
Companies should thoroughly review their customer information deletion policies and protocols.

Ninth Circuit: Sex Is Occupational Qualification for Female Prison Job
By John Stock – July 16, 2015
The court recently held that sex is a BFOQ for certain guard positions at two women’s prisons in the state of Washington.

Release of "Any and All Claims" Does Not Preclude Unpaid Overtime Claims
By Kindall James – June 30, 2015
The Fifth Circuit held that former employees are free to pursue a claim for unpaid overtime under the FLSA despite a previous settlement agreement under which they released the employer from “all actual or potential claims.”

Faragher-Ellerth Defense Available in Vicarious-Liability Cases
By Charn Reid – June 26, 2015
The New Jersey Supreme Court confirms availability of the Faragher-Ellerth affirmative defense in employee lawsuits attempting to hold employers vicariously liable for alleged supervisor misconduct.

NLRB Strikes Down Macy's Employee Confidentiality Provisions
By John Stock – May 20, 2015
An ALJ held that recent employee handbook revisions violate employees’ NLRA section 7 rights.

Fifth Circuit Differentiates "Color" from "Race"
By Kindall James – April 28, 2015
The court recently specified that they are two distinct forms of discrimination that are usually treated as the same.

SCOTUS Issues Ruling on Accommodation of Pregnant Employees
By Charla Bizios Stevens – March 30, 2015
The Court rules on a case involving pregnant employees treated disparately from those with disabilities under the ADA.

Three-Month Drug Abstention Is "Currently Engaging" under ADA
By John Stock – March 27, 2015
The District Court of Puerto Rico held that a plaintiff who had abstained from illegal drug use for three months may be considered to be “currently engaging” in such use under the ADA.

Department of Labor Expands FMLA Coverage for Same-Sex Spouses
By Jennifer R. Phillips – March 11, 2015
Same-sex spousal rights, particularly in the area of employment law, are in a state of flux.

Be Cautious When Attempting to Enforce Non-Compete Agreements
By Wm. Brian London – February 22, 2015
The Boudreaux decision serves as a reminder for Louisiana employers.

Is There Privilege Between EEOC Attorneys and Potential Claimants?
By Mallory Schneider Ricci – February 18, 2015
The Eastern District of California ruled no.

D.C. Circuit Requires NLRB to Reconsider Hat Policy Decision
By Charn Reid – February 9, 2015
Given the board’s recent decisions, it will be interesting to see how many additional cases find their way to the courts in the future.

Nike Lawsuit Will Test Company Security Initiative
By Shawn N. Butte and John A. Snyder – January 28, 2015
The lawsuit may provide a road map and guidance for employers who are continually striving in an increasingly digital world to safeguard their trade secrets.

Judgment Denied to Employer on Homicidal Employee's ADA Claim
By John F. Stock – January 27, 2015
The court concluded at the pleadings stage that the plaintiff had stated a plausible claim that he was terminated because of his mental disability—depression.

Is Your Miniature Horse Needed Because of a Disability?
By Karl O. Riley – January 16, 2015
It’s the busy shopping season, and a customer, who does not seem to have any disabilities, comes in with a miniature horse on a leash. What do you do?

Employers Must Be Cautious Using Good-Faith Defense in FLSA Actions
By Kindall James – January 8, 2015
Asserting such a defense could subject its otherwise privileged communications with counsel to discovery.