Epstein Becker Green and The ERISA Industry Committee (ERIC) have released a new issue of the Benefits Litigation Update.

Featured articles include:

Recent Supreme Court Decisions Revise Rules for Stock Drop Cases
By: Debra Davis, The ERISA Industry Committee

Hobby Lobby and the Questions Left Unanswered
By: John Houston Pope

Post-Amara Landscape Continues to Evolve
By: Scott J. Macey, The ERISA Industry Committee

Supreme Court to Decide Whether A Failed Class Action May Extend
Deadline to Bring Follow-on Claims By Individual Plaintiffs
By: John Houston Pope and Debra Davis

Supreme Court Indicates That It Will Review “Tibble
By: Kenneth J. Kelly

Challenges Could Threaten Individual Subsidies and Employer
Mandate Penalties in States with Federal Exchanges
By: Adam C. Solander

Read more about the Update here or download the full issue in PDF format.

By: Adam C. Abrahms

Yesterday, in his first public address since being confirmed by the Senate, NLRB Board Member Kent Y. Hirozawa shared with the attendees of EBG’s 32nd Annual Client Labor and Employment Briefing his views on the current Board and what to expect from it.

His address, coming the day before Halloween, had all the “BEWARE” foreshadowing of a good ghost story; unfortunately for employers, the potential horrors may not be tricks or treats.

Board Poised For an Active and Productive 2014

As we noted here, when Hirozawa was confirmed as part of a package deal in July the Board had its first full complement of 5 confirmed members in over a decade. During his address Hirozawa explained how important it is for the Board to have confirmed members as it provides them a greater ability to efficiently and freely issue decisions without disruptions. He also noted that having a full complement of 5 members enables the Board to be 67% more productive.

Although acknowledging that the new Board has needed some time to get up to speed, something certainly not helped by the government shut down, Hirozawa asserted it is now poised for action. Hirozawa commented that the Board has a large backlog and that the Board is committed to reducing it quickly. He made it clear to the audience in attendance that there were cases in the pipeline and that parties and practitioners should expect the decisions to start issuing.

Given its current composition, an active and productive Board is likely not a good thing for employers.

Hirozawa Discloses Board Agenda

Hirozawa’s remarks went on to discuss the areas where the Board was likely to focus in the coming months and into 2014. Specifically, he noted that Chairman Pearce was likely to drive the Board back towards rule-making. As we discussed here and here, the Board has previously attempted to impose a requirement that employers post a Notice of Emplooyee Rights but the rule was rejected by the Courts. A new fully confirmed Board may take another stab at it.

Hirozawa specifically noted that the Board is likely to readdress election procedure regulations. Although Hirozawa did not talk is such terms, the attendees understood this meant that the so called “Ambush Election” may be on the horizon again. As readers will recall the Board’s last attempt at streamlining the election proceduce was invalidated on a technicality. Again, now with a fully confirmed, and arguably more pro-labor, Board, employers need to beware of what new election regulations might look like.

In addition to rule-making, according to Hirozawa, the Board is likely to continue addressing (and likely expanding on) the same issues that plagued employers under the unconstitutionally consisted Board of the last couple years. Specifically, Hirozawa noted that the Board is likely to issue more rulings on asserted infringements on Section 7 rights in arbitration agreements under D.R. Horton, Inc. and work rules like at-will, off-duty access, social media, confidentiality and other policies. In fact, the clear implication was that the Board very well may find even more categories of seemingly benign employer policies which “chill” or interfere with an employee’s exercise of Section 7 rights.

Ultimately, Hirozawa’s first public address established him as firmly in control of his new role, informed and engaged, however, it also made clear that employers could expect an active and likely unfriendly 2014 from the Board.

Management Missive

  • Employers should expect the frequency of Board decisions to pick significantly in the coming months and those with cases pending should be prepared to receive their ruling sooner than they may have expected.
  • With NLRB rule-making back on the front-burner, non-union employers should examine their union avoidance strategies and programs and explore proactively inoculating against organizing before the rules shift even more in favor of labor.
  • All employers should take a close look at their policies and work rules from a Section 7 perspective.

We are pleased to announce the release of a new version of our Wage & Hour Guide app that puts federal and state wage-hour laws at retail employers’ fingertips. To download the app, click here.Wage & Hour Guide App for Employers

The new version features an updated main screen design; added support for iOS 6, iPhone 5, iPad Mini, and fourth generation iPad; improved search capabilities; enhanced attorney profiles; expanded email functionality for sharing guide content with others; and easier access to additional wage and hour information on EBG’s website, including the Wage and Hour Division Investigation Checklist and other resources. The new version continues to be offered at no cost.

The wage-hour app has proved to be an incredibly valuable tool for retail employers, answering many of their questions in seconds, while also providing them with a link to our wage-hour blog, where they can find developments in this ever important area of the law,” said Michael Kun, co-creator of the app and national Co-Chairperson of EBG’s Wage and Hour, Individual and Collective Actions practice group, in the Los Angeles office.

How Does the App Work?

Rather than searching through a variety of cumbersome resources to locate applicable wage and hour laws, users of the Wage & Hour Guide app can follow easy-to-navigate steps to find the answers to many of their questions, including citations of federal statutes, regulations, and guidelines, as well as those of California, the District of Columbia, Georgia, Illinois, Maryland, New York, Texas, and Virginia. The following state guides were added after the initial launch of the app: Connecticut, Massachusetts, and New Jersey. To provide the best experience possible, the app enables users to download the guide to their iPhone or iPad device for reference anywhere, at any time, with or without a connection.

We are pleased to announce today that the Employer Defense Law Blog has a new look and a more focused approach.   The Employer Defense Law Blog will now be known as the Retail Labor and Employment Law Blog, which  will provide insights, news, updates, and commentary on labor and employment law developments affecting employers in the retail industry.

For more than three decades, Epstein Becker Green attorneys have been advising and representing retail clients on a wide array of matters that impact their businesses. Our services have included, among other things, drafting worldwide policies and procedures related to global retail operations; negotiating collective bargaining agreements for countless retail and service unions; advising clients in the retail industry on all aspects of the employment relationship; representing and defending retail clients in connection with federal, state, and local administrative charges and in mediations, arbitrations, and lawsuits; and conducting wage-hour, human resource, and compliance audits for retail companies.

As a subscriber, if the topic of  labor and employment law in the retail industry is not of interest to you, please review EpsteinBeckerGreen’s full array of blogs focused on industries such as financial services, hospitality, and health care.  We also offer blogs that follow important and headlines issues concerning wage-hour matters, trade secrets and non-competes, and labor law for management, to name a few.

Thank you for your readership. We hope that you will continue to monitor labor and employment news and insights through your subscriptions to Epstein Becker Green’s law blogs.