The U.S. Supreme Court recently reaffirmed that collective bargaining agreements (CBAs) must be interpreted according to “ordinary principles of contract law,” according to a post in the  Proskauer Rose Employee Benefits & Executive Compensation Blog.

The ruling again rejected the Sixth Circuit’s inference from silence that CBAs vested retiree benefits for life.

Three years ago, the Supreme Court held in M&G Polymers USA, LLC v. Tackett that CBAs must be interpreted according to ordinary principles of contract law, and the court rejected the Sixth Circuit’s so-called “Yard-Man” inference that if a CBA did not specify that retiree medical and other welfare benefits had a limited duration, the benefits were presumed to be vested.

The article’s authors explain: “The Supreme Court unanimously reversed the Sixth Circuit, holding that the Sixth Circuit’s inference of vesting could not be squared with Tackett because it did not comply with Tackett’s direction to apply ordinary contract principles.”

Read the article.

The National Labor Relations Board threw out its most important ruling of 2017 — a 3-2 victory for major U.S. corporations — following an internal agency report that found that a potential conflict-of-interest had tainted the vote, reports Bloomberg, via the Chicago Tribune.

Bloomberg reporter explains that the discarded ruling, called Hy-Brand, had reversed a controversial Obama-era “joint employer” decision empowering workers to pursue claims against, or seek collective bargaining with, major corporations that don’t sign their paychecks, such as franchisors or clients of contractors.

“The vote overturning that 2015 case included support from Trump-appointed William Emanuel, whose former law firm had represented one of the companies in the original case, Browning-Ferris,” Eidelson reports.

Read the Tribune article.

Employers are finding that generic harassment policies with one-size-fits-all instructional videos are not addressing key issues, says Audrey Mross, employment partner at Munck Wilson Mandala.

She and her firm offer a training session for managers and supervisors as well as an employee version of the training.

“Using actual examples helps attendees begin to understand where the line is between acceptable and unacceptable behavior,” she says. “I’ve found that this is what triggers an ‘aha’ moment for many, and often individuals will speak up and share their own experiences with their peers in the training session.”

Read the article.

Next week the Supreme Court will hear oral argument on whether to reverse a 41-year-old ruling that allows states to require government employees to pay union dues even though they don’t want to be union members.

“It’s a familiar question for eight of the nine justices, who have already heard oral argument on the issue twice,” writes Amy Howe in SCOTUSblog. “The court did not resolve the issue the first time; the second time, in the wake of the death of Justice Antonin Scalia, they deadlocked. This means that the outcome in [petitioner Mark] Janus’ case could hinge on the vote of the court’s newest justice, Neil Gorsuch.”

The case, appealed by Janus, an employee of the state of Illinois, comes after the U.S. Court of Appeals for the 7th Circuit rejected his argument that the agency fee violated his rights under the First Amendment.

Read the SCOTUSblog article.

NAVEX Global will conduct its first-ever online master class when it presents “Addressing & Preventing Sexual Harassment.”

The complimentary, 2.5-hour event, will be Wednesday, Feb. 28, 2018, beginning at 8:30 a.m. Pacific time | 11:30 a.m. Easter time.

“With the onslaught of high-profile sexual harassment allegations and an emerging “speak-up” movement around the globe, it’s evident that ignorance and a blind-eye has plagued our culture for too long,” NAVEX says on its website. “It is imperative—now more than ever—that your organization’s leadership fully understands what defines harassment and how to address it in the workplace.”

Register for the event.

An assistant attorney general in the Department of Justice has warned that the DOJ would soon launch criminal enforcement actions against companies that have so-called “no poaching agreements” with each other, whereby they agree not to solicit one another’s employees, reports Bloomberg.

Makan Delrahim, assistant AG in the Antitrust Division, says his division has “been very active” in reviewing potential violations of the antitrust laws caused by these agreements and added that “in the coming couple of months,” the public “will see some announcements” of DOJ actions.

Writing for Bloomberg, three Seyfarth Shaw lawyers warn, “The bright line has now been drawn: Any violative anti-poaching policies after October 2016 expose employers to criminal punishment. In fact, for the DOJ Antirust Division, such enforcement actions might prove to be like shooting fish in a barrel.”

Read the Bloomberg article.

Wolters Kluwer Legal & Regulatory U.S. announced that registration is open for a relevant and timely webinar to provide employers with practical guidance on sexual harassment policies.

The 60-minute webinar, titled “Sexual Harassment Roundtable: Practical Guidance for Employers,” will be Thursday, March 1, 2018, beginning at 1 p.m. EST.

The event will feature experts from law firms in employment and labor law.

Topics will include:

• Why sexual harassment remains a persistent workplace problem
• The types of sexual harassment allegations that can be trickiest for employers
• Pros and cons of using nondisclosure clauses in settlement agreements
• How mandatory arbitration impacts sexual harassment claims
• Best practices for preventing sexual harassment and handling allegations when they do arise

Register for the webinar.

Littler, with an employment and labor law practice representing management, has launched the Littler Pay Equity Assessment, which the firm says provides an analysis that assesses litigation risk and points towards solutions.

According to the U.S. Census Bureau, women are still paid 80 cents for every dollar paid to men, and the gap is even greater for African American and Hispanic women, Littler says in a release. As concerns about pay inequality continue to intensify – bringing new legal and reputational risks for employers – Littler’s platform provides a means of identifying pay disparities for people performing similar work under similar circumstances and proactively fixing them using tested legal strategies. Organizations can access the results of the assessment in a user-friendly dashboard that provides deep and concise examinations of compensation data in a privileged context.

The release continues:

“Having been at the forefront of every development in labor and employment law for the last 75 years, expanding our data-driven approach to address the complicated and important issue of pay equity was a natural evolution,” said Tom Bender and Jeremy Roth, co-managing directors of Littler, in a joint statement. “Not only does this new resource deepen our data analytics capabilities, it expands our commitment to improving diversity and equality in the workplace. By combining innovative technology with our deep experience counseling employers, we can help clients uncover issues they might not have known about and identify causes and possible solutions.”

The Littler Pay Equity Assessment measures compensation differences between demographic groups, identifies those that are statistically significant, and determines the extent to which these differences reflect legitimate business considerations. In a privileged context, Littler can also assist employers with crucial steps for a defensible audit and create a record of the criteria that drives a company’s compensation system and legitimate distinctions among employees that explain any disparities. This information helps human resources departments respond to questions from employees and creates an evidentiary record in the event of future litigation.

“The plaintiffs’ bar is increasingly targeting employers with class action lawsuits focused on fair pay, and state and local governments continue to adopt and expand pay equity laws,” said Denise Visconti, a shareholder and member of the firm’s Wage & Hour Practice Group, who is leading the Littler Pay Equity Assessment. “Proactively addressing this issue on a state specific basis can help lessen the risk of costly litigation and negative publicity that impacts employee morale and customer relationships. But it’s also the right thing to do and gives companies a competitive advantage by demonstrating their commitment to paying employees fairly.”

In addition to maintaining general policies prohibiting sexual harassment, employers may choose to implement workplace romance policies outlining permissible and prohibited conduct concerning dating among co-workers, points out Ashley Robertson Parr in a web post for Nexsen Pruet, LLC.

“Companies often prohibit relationships between employees in supervisory/subordinate roles, given the inherent issues that arise,” she writes. “Other companies disallow relationships between employees and clients/vendors. Another option is to require employees to inform management of workplace relationships. Regardless of the specifics, such policies should reference the company’s anti-harassment policy and remind employees how to report unwanted conduct.  In addition, employers must be diligent in making sure that the policies are enforced fairly and without a disparate impact.”

Her article covers implementing policies addressing workplace relationships, what love contracts are, and the fact that love contracts are not cure-alls.

Read the article.

A case heard by the National Labor Relations Board discusses the law concerning the legal duty to reduce a collective bargaining agreement to writing, and then sign it, according to a post on the Proskauer Labor Relations Update.

Partner Mark Theodore explains:

“Among other things, a signed agreement serves as an absolute bar to employees filing a decertification petition during the term of the agreement (with some timing limitations), while an unsigned agreement does not bar such a petition. A signed agreement also, obviously, is more easily enforced as it signifies to the entire world that this is the deal, and that the parties signed it after evaluation of its terms.”

Read the article.

Hunton & Williams LLP announces the expansion of its national labor and employment practice with the addition of partners Michele J. Beilke and Julia Y. Trankiem and two associates in Los Angeles.

“As employment laws become increasingly complex, we are focused on growing the capabilities of our national practice, especially in geographic regions that are important to our clients,” said Emily Burkhardt Vicente, co-chair of Hunton & Williams’ labor and employment group and a partner in the Los Angeles office. “Michele and Julia are exceptional lawyers who bring a wealth of experience to our already robust employment practices in Los Angeles and San Francisco. Their team’s strong commitment to client service mirrors our own, and we are excited to have them join our team in California.”

Rafael Tumanyan and Sonya Goodwin are also joining the firm as associates in the Los Angeles office. All four came to the firm from Reed Smith LLP.

Beilke has nearly two decades of experience representing employers in California. Her practice focuses on the defense of state and national wage and hour class and collective actions, and single- and multi-plaintiff discrimination and harassment claims. She also counsels and trains employers on a wide range of employment law issues, including compliance with state and federal leave laws, accommodation requirements for workers with disabilities, sexual harassment prevention and managing reductions in force. Beilke has successfully tried numerous cases to verdict in both state and federal court and in arbitration. Beilke received both her undergraduate and law degrees from the University of Southern California.

“Our experience is a perfect match for Hunton’s practice and growing footprint in Los Angeles and the San Francisco Bay area,” Beilke said. “We have all spent our careers in California litigating many of the same types of cases Hunton’s practice is known for, so we are thrilled to be part of the team here with a national platform,” Trankiem added.

Trankiem has represented employers in class, collective, representative and hybrid actions brought under the Fair Labor Standards Act and state wage and hour laws. She also has defended employers in countless single- and multi-plaintiff discrimination, harassment and retaliation claims. Trankiem advises and counsels her clients regarding every facet of the employment relationship. She is active in local and national organizations, including the California Minority Counsel Program and the National Employment Law Council. She received her undergraduate degree from University of California, Los Angeles, and her law degree from University of Michigan Law School.

“Michele’s and Julia’s practices align with Hunton’s strengths in several leading industries, including financial services, retail and consumer products, and real estate development and finance,” said Ann Marie Mortimer, managing partner of the firm’s Los Angeles office and head of the energy and environmental litigation practice.

The firm’s national labor and employment practice has successfully litigated thousands of high-profile, high-risk matters in federal and state courts, hearings before federal and state law enforcement agencies, and mediations and arbitrations. The lawyers in the group represent clients in nearly every form of traditional and emerging labor and employment disputes, concerning issues at the forefront of new employment class and collective litigation trends across the country.

The ranks of women general counsel in the Fortune 500 continued to grow in 2017, particularly in the financial services industry, though it remains more male-dominated than other sectors, according to a Bloomberg Law report.

Cynthia Dow, head of the legal officers practice at executive search firm Russell Reynolds Associates, told Bloomberg that, of the 86 financial services companies in the Fortune 500, 11 hired new general counsel in 2017. And six of those were women.

“Despite the significant bump in 2017, women still lag behind in Fortune 500 financial services GC roles, making up only 22 percent, according to Dow,” writes Stephanie Russell-Kraft.

Read the Bloomberg Law article.

Of all the blockbuster cases at the Supreme Court this year, Janus v American Federation of State, County and Municipal Employees (AFSCME) is expected to hold the fewest surprises, according to The Economist.

Janus, which is due to be argued on Feb. 26, asks whether public employees who choose not to join their designated union may nevertheless be charged “agency fees” to support collective bargaining. Non-members of a union may be required to subsidize contract negotiations over salary, benefits and working conditions. But those workers can’t be charged fees for a union’s political efforts, such as lobbying.

The Economist explains: “Janus is at bottom a bid to undermine America’s labour movement. The case is not presented that way; it arrives at the Supreme Court in First Amendment wrapping by express invitation from Justice Samuel Alito in a pair of recent cases.”

Read The Economist‘s article.

More than one-third of the U.S. workforce is bound to their employers by a non-disclosure agreement, or NDA, according to a Harvard Business Review report this week, which cites figures from a research paper published last year in the Vanderbilt Law Review.

Amy X. Wang, writing for Quartz at Work, says the contracts have been steadily growing in both number and breadth as companies grow warier about competition and proprietary material.

She adds that the problem has spread to cover personal harassment, to the point that many have questioned whether NDAs can end up enabling abusers.

Read the article.

Orly Lobel, writing in the Harvard Business Review, believes that nondisclosure agreements, or NDAs, chill competition, through expansive definitions of what must remain confidential and proprietary, reducing the ability of a discontent employee or an employee working in a hostile work environment to go elsewhere.

“Importantly, as recent studies show clearly, preventing workers from using their knowledge and skills beyond a single workplace is harmful not simply to the worker but to entrepreneurship, competition, and economic growth,” she writes.

Lobel believes that legislatures and courts should look toward imposing penalties on overreaching contracts and rendering any contract with unenforceable scope void in its entirety.

Read the article.

A Sixth Circuit ruling in a recent case shows that an employer’s notice of its institution of a mandatory arbitration policy or program is, without more, insufficient to compel an employee to arbitrate a subsequent dispute, writes Gilbert Samberg in Mintz Levin’s ADR: Advice From the Trenches blog.

He explains that something more is required in order to be able to infer the employee’s knowing assent to the new term of employment. The new “Employment Dispute Resolution Process” (EDRP) was promulgated after the plaintiffs had commenced employment.

Samberg writes that the appellate court “determined that the employer’s failure to notify the employees expressly that ‘they would accept the terms of the EDRP by continuing their employment’ was a critical omission, and thereupon held that the employees had not manifested knowing assent merely by continuing to work at FCA.”

Read the article.

Confidential sexual harassment settlements and accompanying attorney’s fees are no longer tax deductible under the new tax reform bill, according to a new post by Natalie Lynch of Lynch Law Firm in Austin.

In short, companies will no longer be able to use confidential settlements pertaining to sexual harassment as a tax-deductible settlement, she explains.

Non-confidential settlements can still be used for tax deductions. While the reform bill makes it clear that sexual harassment settlements that carry non-disclosure agreements can no longer be used as tax deductions, it stops short of making all confidential settlements non-deductible. Language that would include gender discrimination, retaliation, or Title IV is entirely absent in the bill.

Read the article.

Bloomberg is reporting that a group of Lanetix Inc. software engineers in San Francisco and Washington, D.C., were laid off for trying to join a union, according to organizers working with the group and a complaint obtained by Bloomberg Law.

“The move came less than two weeks after the workers filed a petition to join a CWA unit and days before a union election hearing scheduled for Jan 31,” according to the report by Hassan A. Kanu and Josh Eidelson. “The workers said the company told them the layoffs were due to lackluster fourth quarter performance last year, Fiedler said.”

A CWA executive director told the reporters the company said it was “looking at moving their engineering operations overseas.”

Read the Bloomberg article.

A recent research study developed by Globality in collaboration with The Lawyer found that general counsel prefer working with smaller law firms but often lack the means to find them. The survey went out to more than 300 GCs from organizations with over $1 billion in revenue to uncover the latest industry viewpoint about hiring outside counsel.

The report, “Global Trends in Hiring Outside Counsel,” is available for downloading at no charge.

Key findings:

• Almost 70% of General Counsel rely on pre-existing relationships or referrals to source new legal providers. In-house teams overwhelmingly appoint law firms based on personal connections rather than a systematic appraisal of which firms would be best for the job.
• Levels of dissatisfaction are three times higher with larger law firms than with smaller competitors. Companies find smaller firms deliver better client service, but often lack the means to source them.
• When presented with a series of new legal technologies, 86% of survey respondents were most excited by tools for sourcing and/or communicating with legal providers outside of their immediate network.

Download the Globality report.

Image by Alpha Stock Images

Employers can find good news and some bad news in Seyfarth Shaw’s 14th Annual Workplace Class Action Litigation, which analyzes 1,408 rulings.

The firm has posted the 57-page report on its website and has created a microsite that provides a brief overview of the survey’s findings.

David Shadovitz of Human Resource Executive also has written a summary of the report.

Shadovitz offers the good news for employers from the report: “Legal precedents and new defense approaches resulted in better statistical outcomes for employers in opposing class-certification requests for the second straight year. For instance, in wage-and-hour litigation—one of the more active categories of employment law—employers won 63 percent of decertification rulings, a success rate of nearly 20 percent from the year before.”

On the other side of the coin, he writes, the monetary value of the top workplace class-action settlements jumped more than $1 billion to a record high of $2.72 billion.

Read the Seyfarth report.