Articles by Our Attorneys

In October 2023, labor law and workers’ rights were front and center, as the National Labor Relations Board took actions to expand collective bargaining rights and went after a prominent social media company, while California joined a short list of progressive jurisdictions to expand employee leave rights into the area of reproductive loss.  More below.

NLRB Finalizes Broader Joint Employer Rule

The National Labor Relations Board (NLRB) has issued a significant and highly anticipated revision to the joint employer rule.  If two entities are joint employers under the National Labor Relations Act (NLRA), both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute. The revision to the rule is expected to impact the ability of employees working for franchisees and staffing agencies to collectively bargain with these entities as their “joint” employers.

The new rule replaces a 2020 policy that required workers to demonstrate “direct and immediate control” over key job terms for their employer to be considered a joint employer. The NLRB’s latest revision expands the scope, now allowing a franchisor or user firm to be classified as a joint employer if they have control over aspects such as pay, benefits, or other vital job conditions, regardless of whether that control is exercised directly or indirectly. This includes control exercised through third-party entities like staffing firms.

The rule is a response to concerns that some employers were avoiding responsibility under the National Labor Relations Act by claiming not to have direct control over their workers. Critics of the Rule, such Republican NLRB member Marvin Kaplan, have described it as “unprecedented and unwarranted expansion of the board’s joint-employer doctrine.”  The Rule is scheduled to take effect 60 days after publication.

California joins List of States Requiring Bereavement Leave for Miscarriages and Other Reproductive Loss

California Governor Gavin Newsom has signed a bill, S.B. 848, ensuring that workers in the state are granted up to five days of leave within three months of a reproductive loss, which includes miscarriage, stillbirth, failed adoptions, surrogacy, and assisted reproduction. The law, effective immediately, applies to all employers with five or more workers and aims to support employees during these challenging times.  California joins a small group of states and local governments, including Utah and Illinois, that have expanded bereavement leave requirements in this area.

Under this new legislation, employees must have worked for at least 30 days to be eligible for reproductive loss leave. While the leave can be unpaid if no existing policy covers it, employees can utilize accrued vacation or sick leave for compensation. Notably, this leave does not need to be taken consecutively. Furthermore, if an employee experiences more than one reproductive loss, employers are mandated to grant up to 20 days of leave in a 12-month period.  The law also prohibits employers from retaliating against employees who request or use reproductive loss leave.

In the majority of states that do not require these protections, employers may provide expanded bereavement leave but have no specific obligation to do so. 

NLRB picks fight with X Corp (f/k/a Twitter) over Alleged Retaliatory Firing of Employee who criticized Elon Musk’s Return to Work Announcement

X Corp., formerly known as Twitter, is facing legal action after the National Labor Relations Board (NLRB) prosecutors filed a complaint against the company for allegedly violating federal labor laws. The case revolves around the termination of former employee Yao Yue, who was fired after urging colleagues to challenge the company’s return from remote work policy, initiated by Elon Musk’s directive that “if you can physically make it to an office and you don’t show up, resignation accepted”.

Following Musk’s statement, Yue encouraged her coworkers not to resign, but instead to allow themselves to be terminated, citing the lack of any benefit in resigning. The NLRB prosecutors assert that X Corp. terminated Yue unlawfully, aiming to deter other employees from engaging in similar protected activities.  Yue’s actions were allegedly protected, concerted activity under the National Labor Relations Act.

The complaint seeks compensation for Yue’s direct and foreseeable monetary harm, as well as other consequential damages resulting from the company’s actions. A hearing is scheduled for January 30, 2024. The situation underscores the risk to employers for potentially infringing on employees’ rights to engage in concerted activities without fear of retaliation.

The case is X Corp.. f/k/a Twitter, Inc. and Yao Yue, case number 20-CA-313470, before the National Labor Relations Board Region 20.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

As medical marijuana becomes legal in an increasing number of states, employers are facing new challenges when it comes to managing the use of medical marijuana by employees in safety-sensitive job roles. In Pennsylvania, employers may be particularly impacted by this issue as the state has legalized medical marijuana use. As a lawyer who works with employers in Pennsylvania, I have seen the complexities that can arise when medical marijuana is used by employees in safety-sensitive positions.

Under Pennsylvania law, employers are not required to accommodate medical marijuana use in the workplace. However, employers must be careful when conducting drug tests and when disciplining employees for marijuana use. Significantly, medical marijuana users are protected under the Pennsylvania Medical Marijuana Act (MMA) against discrimination and retaliation by their employers.

One of the biggest challenges facing employers seems to be how to balance the needs of employees who use medical marijuana with the need to maintain a safe workplace. While medical marijuana may be legal and prescribed by a doctor, it can impair a person’s ability to perform certain job duties. This is particularly true for employees in safety-sensitive job roles, such as those in transportation, healthcare, and law enforcement.

To address this issue, employers should develop policies that balance the rights of employees to use medical marijuana with the need to maintain a safe workplace. Employers should consider implementing drug testing policies that account for medical marijuana use, and they should also provide training to managers and supervisors on how to identify impairment and respond appropriately. 

Employers also should be mindful of their potential obligations to provide reasonable accommodations for employees who use medical marijuana under the Americans with Disabilities Act and state disability laws. This may include allowing employees to use medical marijuana outside of work hours or transferring the employee to a non-safety-sensitive position if one is available. However, employers are not required to make accommodations that would pose an undue hardship on the business or would compromise safety.

In addition, employers should be aware of the specific legal protections afforded to medical marijuana users under the Pennsylvania MMA. Employers should avoid taking adverse employment actions against employees based solely on their status as medical marijuana users. Instead, employers should focus on job performance and take appropriate action if an employee’s use of medical marijuana interferes with their ability to perform their job safely and effectively.

The bottom line?  By developing clear policies, providing training to managers, and making reasonable accommodations, employers can balance the needs of employees with the need to maintain a safe workplace. Employers should also stay up to date on the latest legal developments in this area and, of course, seek legal guidance when necessary.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.