07.09.2024Chevron’s Passing Likely to Reshape Labor and Employment Law as SCOTUS Questions Presumption of Agency Subject Matter ExpertiseOn June 28, 2024 the Supreme Court overruled the 40-year-old landmark ruling known as Chevron, a doctrine of administrative law that has until now required courts to defer to federal agencies’ interpretations of ambiguous statutory language. By doing so, the Court has created opportunities for court challenges to agency regulations including those issued by federal labor law and equal employment law agencies.
06.25.2024SCOTUS Requires NLRB to Meet Traditional Standards for Preliminary Injunctive Relief On June 13 the U.S. Supreme Court heightened the standard a court must apply to an NLRB request for a preliminary injunction against an employer accused of violating federal labor law. In resolving a circuit split in which courts applied different tests in determining when to grant preliminary injunctive relief, the Court held that district courts should apply the traditional, four-pronged test in determining whether to grant a preliminary injunction under Section 10(j) of the National Labor Relations Act (Act). Starbucks Corp. v. McKinney.
06.21.2024The NLRB Gives An Employee Four Strikes And He's Still Not Out The National Labor Relations Act gives employees the right to engage in activities together with and on behalf of their co-workers to improve working conditions, called protected concerted activity. The question frequently arises as to the outer bounds of this right. How far can an employee take the cause?
05.13.2024FTC’s Final Rule on Non-Competes May Not be the Final WordIn a controversial move, on April 24, 2024 the Federal Trade Commission (“FTC”) announced that beginning September 4, 2024, it will enforce its Final Rule banning most non-compete agreements that seek to limit a worker’s ability to change jobs. The Rule also requires employers to notify those workers who have non-compete agreements that are nullified by the Rule that these agreements are no longer enforceable once the Rule takes effect; written notices must be sent no later than September 4, 2024. The exceptions to the FTC Rule are few, and extend to non-compete agreements (i) entered into with a business’s senior executives before September 4, 2024, (ii) entered into between a buyer and a seller as part of a bona fide sale of a business, or (iii) that are part of a franchisee-franchisor relationship.
04.24.2024Patrick McGovern Shares Insights "Noncompete decision: N.J. lawyers express some concern — and a lot of caution"The decision by the Federal Trade Commission to ban most noncompete agreements — and have the ruling go into effect in 120 days — certainly sent shockwaves throughout the business community Tuesday night, hours after it was released.
On Wednesday, numerous New Jersey lawyers offered the following advice: Slow down, take a minute to gain an understanding of what this really means — and understand there is little chance this will take effect in 120 days, if at all.
Lawsuits challenging the ruling are being filed.
03.25.2024Genova Burns Congratulates Firm Attorneys Named to Super Lawyers Listings for 2024Genova Burns congratulates firm attorneys who have been named to the 2024 Super Lawyers & Rising Stars listings by Super Lawyers, a Thomson Reuters-owned rating service of outstanding lawyers.
Receiving special recognition, Genova Burns' Chairman Angelo J. Genova, Esq. was once again named to the New Jersey Super Lawyers Top 10 Lawyers and Top 100 Lawyers listings.
03.01.2024H-1B Lottery Process Begins On March 6thOn Wednesday, March 6, 2024, USCIS will open its H-1B cap registration process for fiscal year 2025, informally known as the H-1B Lottery. Since 2020, USCIS has implemented an electronic registration system that requires the sponsoring employer to complete a few information forms and pay a registration fee. For the past three years, the registration fee was $10. For 2024, the registration fee increases to $215 for each visa beneficiary.
01.24.2024USDOL Wage-Hour Division Final Rule on Independent Contractor Status Reverts to Pre-Trump Rule and Rejects “Core Factor” TestOn January 9, 2024 the U.S. Department of Labor (DOL) released a final rule that will apply beginning March 11, 2024 in determining whether a worker can be classified as an independent contractor as opposed to an employee under the Fair Labor Standards Act (FLSA). The 2024 Rule modifies Wage and Hour Division regulations by adopting an analysis that the agency claims is more consistent with judicial precedent and the FLSA’s text and purpose than the final rule issued by the agency during the final days of the Trump Administration (2021 Rule).
01.16.2024Supreme Court Agrees To Resolve Circuit Court Conflict Over Standard For Section 10(j) Injunction In Unionization Efforts Targeting StarbucksThe boiling dispute over the unionization of baristas is heading to the Supreme Court. Section 10(j) of the National Labor Relations Act authorizes federal courts to issue preliminary injunctions against employers that are allegedly violating federal labor law. This allows the National Labor Relations Board to seek this extraordinary relief at the outset of a case, before the employer can defend itself during the NLRB’s lengthy administrative process.
11.29.2023Heads Up To Group Health Plans: December 31 Gag Clause Attestation Deadline ApproachesThe Consolidated Appropriations Act of 2021 prohibits group health plans from agreeing to avoid making certain disclosures of provider-specific cost or quality-of-care information. This is referred to as the gag clause prohibition. The Act also requires health plans and insurers offering group health insurance coverage to attest annually that they are in compliance with the gag clause prohibition. The attestation requirement applies to health insurers offering group or individual coverage and to insured and self-insured group health plans, including ERISA covered plans, non-federal government plans, and church plans.
08.31.2023Risk of Cemex Bargaining Order Raises Stakes for Employers that Commit Serious Unfair Labor Practices During Union CampaignsExpressing palpable frustration with an employer that committed many unfair labor practice charges after a union filed an election petition, and acknowledging the lack of serious disincentives to engage in unlawful behavior opposing a union campaign, on August 25, 2023, the NLRB issued a new set of rules that will apply immediately to many employers and unions locked in a unionizing campaign. The major change is that the Board has determined that it has the power to impose a bargaining order on an employer that engages in serious unfair labor practice charges during an organizing campaign despite the union’s losing a Board-supervised election and without entertaining the remedy of a re-run election.
08.10.2023NLRB Applies a Shifting Burdens Analysis in Reviewing Employer Work Rules; Boeing OverruledOn August 2, 2023, the NLRB further limited employers’ flexibility in designing work rules by holding that all work rules will be reviewed on a case-by-case basis, and no work rules will get an automatic pass. The Board’s 3-1 decision in Stericycle Inc. holds that once the NLRB General Counsel proves that a work rule could chill employees’ exercise of Section 7 rights, there is a presumption that the rule is unlawful, which the employer can rebut only with proof that the work rule serves a lawful business interest, the rule advances the lawful interest, and a more narrowly tailored rule would not advance the interest.
08.08.2023NJDOL Issues Proposed Regulations Implementing N.J. Temporary Workers Bill of Rights ActOn July 21, 2023 the N.J. Department of Labor and Workforce Development (Department) issued long-awaited guidance regarding the Temporary Workers Bill of Rights Act. Certain provisions of the Act took effect on August 5, 2023. These regulations address Sections 1 through 7, and Section 10 of the Act only and are not technically binding on employers and temporary help service firms (THSFs) now since they are in their proposed form and the Department is accepting public comments through October 20; however, they provide additional guidance for employers and THSFs who are trying to comply with the provisions of the Act.
08.03.2023Entrepreneurial Opportunity Takes A Back Seat In Revised NLRB Test Of Employee Versus Independent Contractor StatusOn June 13, 2023, in a 3-1 decision, the NLRB overruled its own 2019 decision in SuperShuttle DFW and returned to the test of statutory employee status in its 2014 FedEx II decision which it terms carefully calibrated. In doing so, the Board held that the Atlanta Opera’s makeup artists, wig artists, hairstylists, and others who worked at the Opera only when operatic productions were staged are employees within the meaning of the National Labor Relations Act, and not independent contractors. The Atlanta Opera, Inc. The NLRB refused to apply the U.S. Court of Appeals 2009 ruling in FedEx I which held that entrepreneurial opportunity is an animating principle of the independent contractor test and accused the Court of misperceiving Board law. The Board decision in Atlanta Opera leaves no doubt that entrepreneurial opportunity is not a super-factor in the analysis of employee status, and is only one factor to be considered in analyzing independent contractor versus employee status. The NLRB held that its prior SuperShuttle DFW holding is no longer the law since it conflicts with common law agency principles, and U.S. Supreme Court and NLRB precedent.
05.31.2023COVID-19 Flexibilities for I-9 In-Person Document Inspections Extended to July 31, 2023, but Physical Inspections of Remotely Verified Documents Must be Completed and Documented by August 30, 2023Federal law requires employers to perform in-person inspections of new employees and their documents (as well as current employees with expiring Employment Authorization Documents (EADs) to verify that they are authorized to work in the United States. Employers must fully and accurately complete a Form I-9, Employment Eligibility Verification, when they inspect the employee’s documents, within three business days of a new hire’s first day of employment (or upon the expiration of a current employee’s EAD.) Beginning in March 2020, though, employers were permitted to perform virtual, remote Form I-9 verifications and document inspections for employees working remotely due to COVID-19.
09.16.2021Third Circuit Upholds Arbitrator’s Imposition of Parent Company Liability for Pension Withdrawal LiabilityOn August 26, 2021, the Third Circuit confirmed that a corporation remained on the hook for the pension withdrawal liability of its bankrupt subsidiary despite diluting its ownership interest in the subsidiary below 80%, to avoid controlled group liability. The decision is an example of a court’s power under ERISA Section 4212(c) to disregard a transaction when it finds that the transaction’s principal purpose is avoiding pension withdrawal liability.
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