Wyatt Employment Law Report


US Supreme Court Gives Rare Victory for Arbitration Opponents in a Narrow Case for Transportation Workers

By Sharon Gold

Over the past few decades, the US Supreme Court has become a very arbitration-friendly Court.  Indeed, in the last decade, the Court has upheld arbitration in numerous decisions.  This week, in a rare victory for arbitration opponents, the Supreme Court in New Prime Inc. v. Oliveira unanimously rejected arbitration for truck drivers who were classified as independent contractors under the narrow transportation exception.  At issue was an exception to the enforceability of arbitration clauses for “contracts of employment” of workers engaged as seamen, railroad workers or those engaged in foreign or interstate commerce under the Federal Arbitration Act.  Both parties in the case agreed that truck driver employees fell within the exception.  The questions at issue were: 1) Should the Court decide the initial issue of enforceability of arbitration or should an arbitrator; and 2) Whether the transportation exclusion applied to independent contractors rather than just employees.

The Court initially held that the decision of whether the exclusion applied was one for the Court to decide because it dealt with the statutory authority of the Court.  In another case decided by the Court this term, the Court held that the interpretation of an arbitration agreement, on the other hand, would be subject to review by an arbitrator who would then decide whether arbitration was proper.  Here, because the exclusion concerned the Court’s statutory authority to Continue reading


Changes in the H-1B Visa Process

By Marianna Michael

It is time to begin working on your H-1B visa petitions for the fiscal year beginning October 2019.  The H-1B visa offers employers a means to temporarily hire international workers for positions that cannot be filled by U.S. workers.  There is a cap of 85,000 visas which can be issued, of which 65,000 are allocated for individuals who have a bachelor’s degree or its equivalent, and 20,000 are allocated for individuals who have a master’s degree or higher.  The H-1B visa is the method way many companies use to hire individuals with highly technical skills in science, technology, engineering and math.  The United States Citizenship and Immigration Services (“USCIS”) generally receives an overload of applications; 199,000 petitions were filed in 2018.

In addition to the high number of applications, there are other challenges for employers desiring to use the H-1B visas.  First, President Trump issued an executive order, “Buy American and Hire American: Putting Americans First,” which is Continue reading


The Supreme Court of Kentucky Upholds Employees’ Right-to-Work

By Marianna Michael

The Supreme Court of Kentucky has rejected a challenge to Kentucky’s right-to-work law, which prohibits companies from requiring workers to pay union dues as a condition for holding a job.

The relevant provision, codified in KRS 336.130, states:

Notwithstanding subsection (1) of this section or any provision of the Kentucky Revised Statutes to the contrary, no employee shall be required, as a condition of employment or continuation of employment, to:

2. Pay any dues, fees, assessments, or other similar charges of any kind or amount to a labor organization.

Kentucky’s AFL-CIO and Teamsters 84 challenged the law. They argued that, pursuant to the Fifth Amendment, the law amounted to an unconstitutional taking from labor organizations that had previously required every worker in a union shop to pay dues, regardless of whether they joined the union. Additionally, they argued that the law was unconstitutional because the Kentucky Constitution prevents lawmakers from passing “special legislation” or laws targeting a specific group or class.

However, both the lower court and the Supreme Court of Kentucky disagreed. The lower court dismissed the case, reasoning that there would be no constitutional taking, since the law was not retroactive and contracts that are currently in existence will remain effective until the contracts expire. Additionally, the court’s opinion distinguished the legislature’s right to create laws and the court’s role in protecting the General Assembly’s ability to legislate. The Supreme Court of Kentucky affirmed the lower court’s ruling.


With New NLRB Proposed Rule, Browning-Ferris’s Days May Be Numbered

By Thomas E. Travis

The National Labor Relations Board (“NLRB”) recently proposed a new rule to scale back a controversial Board decision from 2015 regarding the appropriate test for whether a franchisor and franchisees are “joint employers” under the National Labor Relations Act. This would directly roll back the NLRB decision in Browning-Ferris Industries of California, where the Board extended joint employment to circumstances where a company has only “indirect” control over another company’s workers, overturning a prior ruling that required “direct and immediate control.”

The new proposed rule would establish that two entities become joint employers “only if the two employers share or codetermine the employee’s essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” This is, of course, much closer to the original “direct and immediate control” standard, with even more ascertainable guidelines to assist the Board in reaching its determination. And contra Browning-Ferris, this standard is much more difficult for challengers to meet in making claims for joint employment.

Should the proposed rule take effect, commenters are somewhat divided over the impact of Browning-Ferris on litigation. Some observers note that the standard was infrequently invoked and seemed to not impact labor litigation nearly as much as its detractors contend. On the other hand, some critics rebut that the impact is felt not just in litigation, but in business planning and economic development: the broad standard invoked in Browning-Ferris required entities to closely evaluate every workplace scenario in attempt to avoid the vague strictures of the NLRB’s decision, and the prior rule seems to disincentivize franchising and other cost-saving business relationships.

Employers will most likely welcome the proposed change. If anything, the proposed change removes the latent ambiguities from Browning-Ferris, and replaces it with a clear standard to ease future business planning going forward.


Kentucky Supreme Court Limits Employers’ Ability to Enter Arbitration Agreements with Employees

By Marianna Michael

agreement-coffee-content-1076815Within the first week of October, the Kentucky Supreme Court issued its opinion in Northern Kentucky Area Development District v. Snyder NO. 2015-CA-001167 (Ky. Aug. 27, 2018). The court faced the decision of whether the Federal Arbitration Act (“FAA”) preempted KRS 336.700. Ultimately, the court held that: (1) employers may not condition employment on entering into arbitration agreements and (2) the FAA does not preempt KRS 366.700(2).

In this case, Danielle Snyder brought suit against her former employer, the Northern Kentucky Area Development District (“NKADD”). NKADD is a public agency that provides social programs to eight Kentucky counties. It hired Snyder on the condition that she enter into an arbitration agreement. The agreement required Snyder to resolve all disputes with NKADD through arbitration and not through the courts. Snyder was given the option to reject the agreement within five days of accepting it, but the rejection would end her employment with the company. She accepted the condition and worked for NKADD until Continue reading


Employers Have Opportunity to Comment on NLRB’s Proposed Joint Employer Rule

By Sharon Gold

The National Labor Relations Board (“NLRB”) recently proposed a rule establishing the standard for determining joint employer status under the National Labor Relations Act.  Employers have until November 13, 2018 to comment about the proposed rule.  The proposed rule, commentary and instructions on commenting are available here.

There have been several changes to the definition over the past few years, which has caused uncertainty for employers.  The proposed rule states that employers are joint employers “only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.”  Proposed Rule Part 103.40.  “A putative joint employer must possess and Continue reading


Stay Cool: Preventing Heat Illness in the Workplace

By Julie Laemmle

breathing-apparatus-dangerous-emergency-36031Heat-related hazards can affect a variety of workers and workplaces.  Without proper employer and employee precautions, exposure to heat can lead to worker injuries, diseases and fatalities; reduced productivity; and Occupational Safety and Health Administration (“OSHA”) citations and penalties.  To minimize any health or business risks, employers should be properly educated on the dangers of occupational heat exposure, understand their responsibilities and take appropriate steps to protect workers.

Heat-related illnesses include heat stroke, heat exhaustion, heat cramps, heat rash, heat fatigue and fainting.  Further, all of these illnesses can progress to much more serious conditions and could even lead to death.  Other heat-related risks Continue reading