Earlier this spring, the Department of Labor issued final rules drastically changing more than fifty years of interpretation of the Labor Management Reporting and Disclosure Act of 1959, as amended. These new rules will require detailed disclosure of arrangements that employers have with attorneys and consultants for such things as advice on the content of communications with employees about unions; training of supervisors on how to talk to their employees about unions without violating the law; and even drafting handbooks and personnel manuals that contain statements that might cause employees to think they don’t need unions. The rules became effective officially at the end of April, but the date provided in the rules for enforcement is July 1.

Predictably, these rules have generated legal challenges, alleging that they violate fundamental First Amendment rights to communicate; impair the right to counsel; and exceed the authority of the DOL. In the meantime, the DOL has taken the position that the new rules will not apply to agreements entered into before July 1, or to activities after July 1 that result from agreements entered into before July 1. The following is from a filing by the DOL in one of the many pending cases:

On March 24, 2016, the Department of Labor’s (“the Department”) Office of Labor-Management Standards published a rule entitled “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act,” 81 Fed. Reg. 15924 (“the Rule”). While the effective date of the Rule is April 25, 2016, the rule is only applicable to arrangements and agreements made on or after July 1, 2016, and to payments made pursuant to arrangements and agreements entered into on or after July 1, 2016. 81 Fed Reg. 15924. The Rule revises the reporting requirements, and related record keeping requirements, for certain agreements and arrangements entered into between employers and labor relations consultants or other independent contractors, and payments made pursuant to those agreements and arrangements. The Department will not apply the Rule to arrangements or agreements entered into prior to July 1, 2016, or payments made pursuant to such arrangements or agreements. Consequently, under the Rule no employer, labor relations consultant, or other independent contractor will have to report or keep records on any activities engaged in prior to July 1 that are not presently subject to reporting, or file the new Forms LM-10 or LM-20 (revised pursuant to the Rule) for any purpose prior to July 1.

Accordingly, employers have a Limited Time Window of Opportunity to enter into agreements with their employment law advisors. If they enter into agreements on or before June 30, 2016, they will be spared the cost and trouble of these oppressive filing obligations, even if the services are performed far into the future. Most labor firms, including Frantz Ward, are prepared with drafts ready to turn around on short notice to protect clients in this way. Regardless of how the pending challenges to the new rules turn out, this opportunity to use the DOL’s own interpretation to avoid the worst effects of the rules should not be missed.

The Equal Employment Opportunity Commission (EEOC) is working to check off another initiative from its Strategic Enforcement Plan, having released for public comment an updated draft of its “Enforcement Guidance on National Origin Discrimination.” The enforcement guidance frames out the agency’s policy for addressing national origin claims under Title VII of the Civil Right Act of 1964, 49 U.S.C. §2000e et seq., which prohibits unfair treatment of employees and applicants based upon a number of defined characteristics including national origin.

The applicable law, according to the enforcement guidance, prohibits “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group” and “prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.” The enforcement guidance addresses a wide range of topics including intersectional discrimination, human trafficking, harassment, accent and fluency, national security requirements, and citizenship issues.

National origin discrimination is counted among several other high priority items identified in the EEOC’s Strategic Enforcement Plan, including LGBT and transgender protections, criminal background checks, equal pay and accommodations for religion and pregnancy. The draft guidance is available for review here. The EEOC has allowed a comment period of only 30 days, and that closes on July 1.

Rule Also Has Potential Ramifications for Employers’ Post-Accident Drug-Testing Policies

OSHA recently released its Final Rule on the electronic recording and submission of injury and illness records. The Rule has several important provisions of which employers need to be aware, as well as some potential ramifications to long-standing employer practices.

Here are the basic requirements under the new Rule:

  • Employers with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from their OSHA 300, 300A, and 301 forms to OSHA
  • Employers with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must electronically submit information from their OSHA 300A forms to OSHA
  • All employers required to do so must still otherwise maintain their OSHA 300, 300A, and 301 forms at their respective establishments

Click here to read the full client alert.

According to a press release from Ohio Governor John Kasich’s office, the Governor signed six bills yesterday, including H.B 523, which authorizes the use of marijuana for medical purposes and establishes the Medical Marijuana Control Program. H.B. 523 was passed by the Republican controlled Ohio General Assembly on May 25, 2016. According to Ohio law, the Governor had ten days to sign the bill, or it would have become law, absent a veto.

The newly enacted law would allow the use of medical marijuana for medical conditions, such as chronic pain and some twenty other specified medical conditions. The law would reschedule marijuana as a schedule II drug and permit medical marijuana to be administered by patch, vaping, oil and edible, but would not permit smoking.

While the law takes effect in 90 days, it is estimated that the formation of the various boards of control and commissions and approval of regulations will take considerably longer. The law requires that medical marijuana be available within two years. A complete text of the law is available here.

After revisions in format and technology, we are proud to announce that the Labor & Employment Law Navigator Blog is back. The Navigator, written by experienced attorneys at Frantz Ward LLP, provides succinct information on new developments in the L&E space, cautionary tales for HR professionals, and helpful hints for navigating the increasingly hazardous shoals of the L&E world. Upcoming topics include overtime changes, medical marijuana, and OSHA reporting changes.

We have incorporated a more robust comment capacity to facilitate interactivity, so we look forward to hearing from you!

–Keith Ashmus


2015-01-01-MedicalMarijuana_photoHouse Bill 523 (or HB 523) is now through the General Assembly and on Governor Kasich’s desk for his signature. On May 10, 2016, the Ohio House of Representatives passed HB 523, a bill that would permit a patient, upon the recommendation of a physician, to use medical marijuana to treat a qualifying medical condition. The Senate made some changes, and on May 25, 2016, passed the bill as well. That same day, the House approved the changes made in the Senate and passed the revised bill.

Click here for highlights of the bill and to read the entire Client Alert.

wellness-crop-600x338On May 16, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations regarding employers’ use of wellness programs. Such programs seek to promote healthy behavior by employees, often through financial incentives such as reduced healthcare benefits premiums or reduced gym membership costs. The EEOC rules amend existing regulations under the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and create new regulations under the Americans with Disabilities Act (“ADA”).

Click here to read this Client Alert.

Overtime_Clock_Lead_Copyright_ImilianAfter months of waiting and speculation, the White House later today will release a new rule that could make more than four million Americans eligible for overtime pay. The rule will become effective in December, and will do the following:

  • Immediately double the minimum salary threshold for most white collar exempt classifications to $47,476 per year ($913 per week)
  • Adjust the minimum salary threshold for most white collar exempt classifications for inflation every three years
  • Change the way that the minimum salary is calculated so that employers can count bonuses and commissions toward as much as 10 percent of the salary threshold

Although the changes in the new rule are significant, many employers will be very relieved to learn that the White House decided not to make changes to the duties tests for the white collar exemptions at this time. Some observers, however, believe that changes to the duties tests are inevitable, and that the timing of those changes will depend largely on the outcome of the election in November.

A copy of the new rule, along with a summary from the White House of the basis for the rule, can be found here.

Employers should begin reviewing their exempt classifications and salary structures to prepare for the December effective date of the new rule. If you have questions about the rule or implementation strategies, contact a member of the Frantz Ward Labor and Employment Practice Group.

Federal law has long protected owners of patents, copyrights and trademarks from infringement of those intellectual property rights. Trade secret owners, however, traditionally had to rely on state law to protect their trade secrets from improper use or disclosure. Congress has now given trade secret owners an additional avenue for protecting their intellectual property: the Defend Trade Secrets Act of 2016 (the “DTSA”). The DTSA creates a civil cause of action under federal law for misappropriation of trade secrets.

Click here to read this Client Alert.

Based upon information received from a number of sources, it now appears that the Department of Labor’s controversial changes to the rules governing the white collar exemptions under the Fair Labor Standards Act will be finalized and published in the coming weeks – potentially as early as next week. Once published, it is expected that employers will have only 60 days before the new rules take effect.

Click here to read this Client Alert.