Legal adventurism in an attempt to make new law 12/12/17

By L. Michael Zinser, The Zinser Law Firm
By L. Michael Zinser, The Zinser Law Firm

This month's column reports on two National Labor Relations Board administrative law judge decisions involving the issue of whether someone is an employee or an independent contractor. In both cases, former NLRB General Counsel Richard Griffin had urged the ALJ to rule that merely classifying someone as an independent contractor is an independent violation of the National Labor Relations Act. This is legal adventurism in an attempt to make new law.

In one of the cases, the ALJ found independent contractor status and chose not to reach that novel issue. In the second case, the ALJ found employee status and agreed with the NLRB general counsel, finding that the misclassification of the individuals as independent contractors was a per se independent violation of the NLRA. With a new management majority sitting on the NLRB in Washington, let us hope that this legal adventurism will be reversed.

I also report on a new NLRB case involving an employer's texting and confidentiality rules, as well as a new court case addressing the ability to discover social media passwords in litigation.
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Management attorney Peter Robb confirmed as next NLRB general counsel 11/14/17

By L. Michael Zinser, The Zinser Law Firm

On Nov. 8, by a vote of 49 to 46, the U.S. Senate confirmed President Trump's nomination of Peter Robb to be the next NLRB general counsel. Robb, a management labor lawyer from Vermont, replaces Richard Griffin, whose term expired on Nov. 4.

In this column, also read an update about the U.S. Department of Labor overtime rule, news about an EEOC case, plus a case regarding the ADA.

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Emanuel confirmed; NLRB management majority restored 10/16/17

By L. Michael Zinser, The Zinser Law Firm

On the evening of Monday, Sept. 25, the U.S. Senate voted 49 to 47 to confirm William Emanuel to the National Labor Relations Board.

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Independent contractor carveout changed in North Carolina 10/10/17

By L. Michael Zinser, The Zinser Law Firm

We have been writing for months about the never-ending saga of legislative attempts to remove from North Carolina law a provision in the workers' compensation law that presumes newspaper carriers are independent contractors. This presumption has been very valuable since it was passed almost two decades ago. Since that time, there has not been a single reported independent contractor versus employee case in the workers' comp arena in the state of North Carolina.

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Emanuel confirmed; NLRB management majority restored 9/26/17

By L. Michael Zinser, The Zinser Law Firm

On the evening of Monday, Sept. 25, the U.S. Senate voted 49 to 47 to confirm William Emanuel to the National Labor Relations Board.

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Texas court kills Obama DOL overtime rule 9/4/17

By L. Michael Zinser, The Zinser Law Firm

On Aug. 31, U.S. District Court Judge Amos Mazzant granted the motion for summary judgment of various business groups and state attorneys general in the overtime rule case.

Previously, on Nov. 22, 2016, Judge Mazzant issued a nationwide injunction, preventing the implementation of the rule, pending a decision on the merits of the case. The injunction case is before the U.S. Court of Appeals for the Fifth Circuit. It has been fully briefed and is currently scheduled for oral argument before the court on Oct. 3.

There is much speculation that oral argument may not occur, and the DOL may withdraw the appeal, given the Aug. 31 decision of Judge Mazzant granting the motion for summary judgment, which ruled that the final rule was unlawful.

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Pay raises and unions -- what does the law allow? 8/22/17

The following Legal Hotline question was addressed by L. Michael Zinser of The Zinser Law Firm
Question: Our newspaper is currently in labor negotiations with a union, and we are stuck on the wage issue. Is it lawful to grant pay raises to our non-union employees while forgoing them for the represented employees?

Read the response from Michael Zinser of The Zinser Law Firm. MORE

Court of Appeals reverses NLRB on handbook policies 8/15/17

By L. Michael Zinser, The Zinser Law Firm

In recent years, the National Labor Relations Board has relentlessly attacked common sense policies found in many employee handbooks. I have been hoping that the U.S. Court of Appeals would correct these egregious decisions. I am delighted to report that, on July 25, the U.S. Court of Appeals for the 5th Circuit issued an opinion in a case involving T-Mobile that did just that.

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Latest updates on N.C. legislative presumption 8/8/17

By L. Michael Zinser, The Zinser Law Firm

As previously reported, North Carolina newspapers have been fighting to maintain the tremendous advantage they have enjoyed in Workers' Compensation legislation for the last 20 years, in the form of a legislative presumption of independent contractor status for newspaper carriers.

At the very end of the legislative session on June 28, a modified version of H.B. 205 passed in both Houses. This bill would have removed the legislative presumption. Fortunately, on July 17, Governor Roy Cooper vetoed the new legislation.

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U.S. Department of Labor overtime rule update 8/1/17

By L. Michael Zinser, The Zinser Law Firm

The DOL is inviting comments on the 2016 revisions to white collar exemption regulations. Here are specific questions that will be addressed.

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