McDonald’s has become the poster child for testing the breadth of impact of joint employer status. In a recent sexual harassment case, the EEOC has indicated it plans to follow the reasoning of Browning-Ferris, allowing it to “apply new legal standards” if it confirms the allegations. The NLRB just made “on-premises” restrictions to picketing activity a more slippery slope in the Capital Medical Center ruling. Off-duty employees could not be constrained from picketing peacefully near the entrances of the hospital. The board applied a balancing test weighing employee’s Section 7 rights against the employer’s property rights, and since the picketers were not disrupting healthcare operations, they were allowed to continue. The NLRB General Counsel is attempting to expand protection to striking workers, asking regional directors and officers to change precedent and take a new legal direction outlined in a model brief for use with intermittent and partial strike occurrences. The DOL has published the final rule requiring federal contractors to provide paid sick leave to employees. There have been several changes to the rule as proposed by Executive Order in February, so if this affects you, you should dig into the details. In an interesting side note to the UAW-Volkswagen contest in Chattanooga, the National Right To Work Foundation has charged that the DOL has ignored the activities of IG Metall – a foreign labor union – in their effort to help UAW organize the plant. The NRTW charges that IG Metall should have had to file according to the Labor Management Reporting and Disclosure Act (LMRDA), but that the DOL has been looking the other way. Neither the DOL nor the unions involved have responded to the allegations. Should this stand, US unions may have found a way to partially subvert the LMRDA by partnering with foreign unions. In a hefty wrist-slap, the D.C. Circuit Court of Appeals scolded the NLRB for “bad faith”, “abusive tactics” and “extremism.” The court further noted: “It is clear enough that the Board’s conduct was intended to send a chilling message to Heartland [Heartland Plymouth Court MI, LLC v. NLRB], as well as others caught in the Board’s crosshairs… administrative hubris does not get the last word under our Constitution. And citizens can count on it.” The court awarded fees to Heartland. Unfortunately, the message most likely went in one NLRB ear and quickly out the other. And in what may come as a help to private employers, 21 states have sued to block the DOL’s new overtime rule, citing a threat to constitutional federalism. The states argue in part, “By committing an ever-increasing amount of State funds to paying State employee salaries or overtime, the Federal Executive can unilaterally deplete State resources, forcing the States to adopt or acquiesce to federal policies, instead of implementing State policies and priorities.”
