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Jordan Faykus is a partner in the Houston offices Labor & Employment Practice Group. Mr. Faykus represents management in all aspects of labor and employment law, including employment litigation, counseling and traditional labor law. Mr. Faykus has significant experience defending employers in matters involving employee discrimination, including claims brought under Title VII of the Civil Rights Act, the FMLA, the ADEA and the Texas Commission on Human Rights Act. He also has considerable experience in traditional labor law including collective bargaining, the arbitration of grievances, and in matters before the National Labor Relations Board. Mr. Faykus is seasoned in advising on workplace safety and OSHA law. He also defends clients in matters involving ERISA administrative claims, discrimination claims and plan notice claims. Mr. Faykus regularly advises company management regarding independent contractor matters and exempt status misclassifications, covenants not to compete, and breach of employment contract.

On Monday, September 26, the U.S. Senate voted and confirmed William Emanuel as the newest member of the National Labor Relations Board.  Emanuel is a long-time management-side labor and employment attorney, who was nominated by President Trump in June to fill the vacant NLRB seat.  With Emanuel’s confirmation, the NLRB has a Republican majority for the first time in ten years.

As previously reported here, President Trump also recently nominated Peter Robb to serve as the next General Counsel for the NLRB.  Robb has worked as a management-side attorney in private practice since 1985.  If confirmed, Robb would be the first Republican to serve as NLRB General Counsel since 2010.

With Emanuel’s confirmation to the NLRB, as well as Robb’s nomination for General Counsel, several of the previous administration’s union-friendly decisions are expected to be rolled back.

U.S. Secretary of Labor Alexander Acosta announced in a June 7, 2017 press release that the U.S. Department of Labor (DOL) has withdrawn two of its recent administrator’s interpretations. One of the administrator’s interpretations, issued in 2015, focused on the misclassification of employees as independent contractors under the Fair Labor Standards Act (FLSA) and indicated that the DOL would be more closely scrutinizing independent contractor classifications. The other administrator’s interpretation, issued in 2016, examined joint employment relationships under the FLSA. Both interpretations were widely considered to be an attempt by the DOL to expand the coverage and enforcement of the FLSA. The withdrawal of the guidance documents likely indicates a shift in enforcement focus of the DOL under the Trump administration.

To read more, click here.

On January 13, 2017, the US Supreme Court agreed to determine whether arbitration agreements that include class action waivers are legally enforceable under the National Labor Relations Act (NLRA). In doing so, the Court granted the petitions for certiorari, and consolidated, three cases from the US Court of Appeals for the Fifth, Seventh and Ninth Circuits.  While the Fifth Circuit has ruled that class action waivers are enforceable, the Seventh and Ninth Circuits have disagreed and held that class action waivers violate the NLRA.  The National Labor Relations Board (NLRB) has also continued to hold that class action waivers violate the NLRA and interfere with employees’ rights to engage in concerted activity.  A ruling by the Supreme Court on the issue should resolve the Circuit Court split, provide nationwide guidance, and end the patchwork approach that has been adopted by US employers who utilize arbitration and class waivers.  The Supreme Court’s decision is expected before the end of June 2017.

To read more, click here.

Internal pay audits are rarely enjoyable. Depending on the scope, these audits can be complex and require detailed analysis.  However, in the current legal climate, an internal audit can be extremely valuable and greatly reduce, or even eliminate, potential liability for wage and hour claims as well as pay equity claims.  As previously reported on this blog, increased scrutiny into pay equity discrimination, changes in EEO-1 reporting requirements, the Department of Labor’s joint employment efforts, and the updated FLSA exemption rules continue to place companies at greater risk of government audits, fines, and lawsuits.

Many employers may have already reviewed and updated their policies in anticipation of the changes to the “white collar” FLSA exemptions, which go into effect on December 1, 2016. But if your company has not yet done so, or to the extent you have not conducted a more comprehensive internal audit, your company should strongly consider doing so as soon as possible for several reasons. Continue Reading Don’t Wait! Now Is the Time to Conduct an Internal Wage & Hour Audit

Earlier this month, the National Labor Relations Board issued a memorandum announcing the steps it will take to report complaints alleged against federal contractor employers in order to comply with the Fair Pay and Safe Workplaces Executive Order 13673.  In doing so, the NLRB became the first government agency to implement reporting procedures under the Executive Order, though regulations have not been finalized.  Noteworthy, it appears the NLRB will use the Executive Order’s reporting requirements as a pressure point to further encourage the early settlement of complaints filed against companies.  While it remains to be seen exactly how the Executive Order’s “blacklisting” procedures will impact federal contractors, it is important that companies understand the potential impact of the Executive Order and the planned procedures of the various administrative agencies, including the NLRB, to comply with the Executive Order. Continue Reading Federal Contractors Take Note – NLRB Will Report Complaints Unless Companies Agree to Settlement

On July 11, 2016, the National Labor Relations Board issued its opinion in Miller & Anderson, Inc., and held employer consent is no longer necessary for a union to organize a single bargaining unit consisting of both the employer’s regular employees and temporary workers that are supplied from other companies. In the wake of last year’s Browning-Ferris decision and the NLRB’s expansion of its joint employment standard, Miller & Anderson seems to be the latest effort of the NLRB to broaden the reach of the National Labor Relations Act. The decision reversed previous Board precedent, which gave employers discretion to consent to the inclusion of workers who are supplied by other companies into a single bargaining unit. Now, combined units may be approved if the workers share a community of interest. This decision is significant as it greatly expands employer’s bargaining obligations toward temporary workers and other supplied workers, and potentially lengthens the relationship between the parties.

For more details regarding the Miller & Anderson decision, as well as its potential impact on employers, click here.

Leave accommodations can be a complicated issue for a company’s human resources and legal teams.  The EEOC, however, recently issued guidance discussing leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The guidance serves as a good reference on the EEOC’s stance on several complex accommodation issues, and clarifies the EEOC’s views on equal access to leave, granting additional unpaid leave as an accommodation, and maximum leave policies.  In light of the recent guidance, now is a good time to review your company policies. Continue Reading Are Your Leave Policies Sufficient? EEOC Issues Guidance on Leave as an ADA Accommodation

This morning’s announcement that the British public have voted in favor of a so-called “Brexit,” has the potential to be one of the most significant events in recent British history. The precise implications of Brexit will depend upon exactly how the UK’s future relationship with the EU will be structured. We have put together an updated briefing to help businesses with operations in the UK understand how employment law might be affected by the Brexit, identifying the various types of relationships with the EU which the UK may adopt in place of full membership. A copy of the briefing can be found here.

With the recent revisions to OSHA’s Field Operations Manual that, among other changes, allow for increased penalties and grant inspectors greater discretion, it is more important than ever for companies to know what to do when OSHA comes knocking.  OSHA has made it extremely easy for employees to lodge complaints and has been concentrating efforts on raising employee awareness – both of which increase the likelihood of an inspection.  OSHA has also made it clear that the oil and gas industry is an agency priority and companies within that industry can expect heightened scrutiny.  Regardless of your past experience with OSHA, knowing how to handle an inspection will help make the process as smooth (and citation-free) as possible. Continue Reading Surviving an OSHA Inspection – What to Expect When OSHA Comes Knocking

We would like to ensure our readers are aware of a blog published by our Canadian colleagues:  “Canadian Labour and Employment Law.”  If your organization has operations anywhere in Canada, we expect you will find this blog to be informative and practical.  Click here to see for yourself.