The Department of Labor’s rule restricting certain workers from taking leave under the Families First Coronavirus Response Act has been struck down. A New York federal judge found that the rule’s denial of benefits to workers of employers that “do…not have work” for them was “manifestly contrary” to the FFCRA’s language. The rule’s provisions regarding an overbroad definition of excluded health care providers that included “anyone employed at” a doctor’s office or medical service providers, as well as medical manufacturers, was also struck down. A provision requiring employer permission for intermittent leave was struck down as well, in addition to documentation requirements attesting need for leave. These provisions were struck down under Chevron precedent as unreasonable, contrary interpretations of the FFCRA.
The NLRB has ruled that an exotic dancer under an “entertainer tenant” contract was an employee under federal labor law and illegally fired. The Board ruled that Brandi Campbell did not have sufficient opportunity for economic gain to qualify as an independent contractor. Though Campbell opted out of Centerfold Club’s $100 minimum guarantee for compliance with certain mandates to avoid employer control, the Board still found that the club exerted control over Campbell through “rules, expectations, supervision, fines, and penalties.” The Board also found that the club had fired Campbell out of animus for her previous activity filing charges with the NLRB and for threatening to file a charge against Centerfold. Rulings on exotic dancers’ employment status are rare at the NLRB.
As part of an EEOC settlement, Walmart will end its use of physical abilities tests at distribution centers for “orderfiller” positions and pay a $20 million fine. The EEOC suit was filed in a federal Kentucky court and alleged that Walmart discriminated against female applicants on the basis of sex. Walmart required orderfillers to achieve a certain minimum PAT score to advance further in the hiring process and barred those who did not get the score from reapplying for six months. Walmart is denying liability despite the settlement but will still be barred from any use of PAT for five years after the settlement is substantiated. The settlement will be distributed to a class of female orderfillers that applied as orderfillers since February 1, 2010, and did not advance further in the application process after not receiving a “competitive” PAT score.
Economists are debating the extent to which employment rates have recovered or not in the month of July. The general consensus is that nonfarm jobs have increased by about 1.26 million, which is lower than May or June but still substantial in light of the pandemic. However, Goldman Sachs, using metrics such as credit card spending and job search aggregations, believes that the unemployment rate actually increased in July as pandemic conditions have worsened. The U.S. Census’s Household Pulse Survey also shows a steep decline in jobs from a week in June compared to the same week in July. A senior Deutsche Bank economist also believes the evidence points to a declining job rate in July due to increased virus cases.
A Federal Labor Relations Authority panel has ruled that immigration judges can keep their union. The Department of Justice attempted to decertify the union based on claims that immigration judges are management officials. The FLRA panel said that immigration judges don’t create precedent or policy and that immigration judges are not excluded from unionizing under the Federal Service Labor-Management Statute. Despite deference given to immigration judges, their rulings are subject to examination by the Board of Immigration Appeals and their evidentiary findings can be superseded by new evidence. This ruling follows a similar ruling in 2000 rejecting an earlier decertification attempt and finds that the job duties of immigration judges have not substantially changed since then.