The US Department of Labor (DOL) Administrative Review Board (ARB) recently issued a decision in the case of Evans v. US Environmental Protection Agency, ARB Case No. 2017-0008, ALJ Case No. 2008-CAA-00003 (ARB Mar. 17, 2020), dismissing a whistleblower complaint filed under various employee protection provisions and finding that the employer's actions against the complainant were reasonable and taken to ensure employee safety after the complainant threatened to bring a gun to work. The ARB’s decision is instructive for employers deciding how to respond to workplace threats and establishes that such actions—when reasonably based on the circumstances—will not be considered retaliatory. The ARB’s decision also addresses the legal standard for motions to dismiss a complaint before a hearing, and reinforces that for a concern to be protected, it must be grounded in a reasonably perceived violation.

In response to the coronavirus (COVID-19), the US Department of Labor’s (DOL’s) chief administrative law judge (ALJ) issued an administrative order on March 19 clarifying the status of matters pending before the DOL’s Office of Administrative Law Judges (OALJ). The administrative order covers the following:

OALJ Hearings Suspended

Effective March 23, OALJ is suspending all hearings, including telephonic hearings, until May 15. Parties may petition the presiding ALJ to conduct a telephonic hearing but must demonstrate compelling circumstances. This suspension does not apply to cases in which the parties have jointly agreed to a decision on the record based on stipulated facts or a stipulated record.

Our US labor/management relations team continues to track the National Labor Relations Board’s (NLRB’s) increasingly business-friendly approach in 2019. The Board’s busy year to date includes its decision in Entergy Mississippi, addressing the supervisory status of certain electric utility transmission and distribution dispatchers and resulting ineligibility to vote in a union election. This important decision is discussed further in our recent edition of Labor & Employment NOW. Moreover, the Board’s recent proposed rulemaking on union election procedures is the latest sign that the Republican-majority Board is now in high gear. As outlined in this LawFlash, employers should stay tuned to the Board’s regulatory and decisional authority in the second half of 2019. Of particular interest for the nuclear industry is the Board’s upcoming second round of rulemaking on union election procedures, as well as the final version of the NLRB’s rules on its joint employer standard to determine when an entity has an employer relationship with the employees of another business, impacting relationships such as vendors and onsite contractors.

The National Labor Relations Board (Board) published a Notice of Proposed Rulemaking and Request for Comments in the Federal Register on September 14. The proposed rule seeks to reestablish the standard for determining joint-employer status that existed before the Board’s 2015 Browning-Ferris Industries of California decision.

This is a potentially significant development for companies in the nuclear industry, particularly for those with unionized workforces. But the proposed rule is also important for nuclear companies with nonunion workforces because joint-employment issues frequently arise in whistleblower cases, in which contract employees seek to hold the utility liable under Section 211 of the Energy Reorganization Act, as well as their actual employer (the contracting company). Although the US Department of Labor (DOL)—not the Board—adjudicates Section 211 claims, DOL sometimes considers Board decisions in its adjudications. Consequently, the proposed rule, if ultimately promulgated, will likely inform future Section 211 cases.

Employers, including those in the energy industry, should note that on November 22, a judge in the US District Court for the Eastern District of Texas issued a preliminary injunction halting on a national basis all but a few parts of the US Department of Labor’s (DOL’s) salary basis requirement for the primary overtime exemptions that were scheduled to take effect December 1. For as long as this injunction remains in effect, the old salary basis test ($455 per week) for the white collar exemption remains in effect.

Employers need not increase employees’ salaries on December 1 to continue to qualify for the executive, administrative, professional, and computer professional exemptions. However, employers should be ready to comply with the new regulations on very short notice because they could take effect immediately in the event that the injunction is lifted at any time after December 1. Furthermore, the court’s ruling has no effect on state and local law overtime exemptions, so employers will need to continue to comply with all requirements under those laws, some of which already have in place salary levels higher than the existing federal level. Read our full LawFlash for more details: Texas Court Enjoins Most of DOL's New Overtime Regulations.