Vermont News & Analysis

  • NLRB sets new standard for union reps on employers' property

    For decades, the National Labor Relations Board (NLRB) took the position that employers couldn't exclude nonemployee union representatives from spaces on their property that were open to the public, such as restaurants and cafeterias. Recently, the Board reversed its decades-old precedent and overturned its public-space exception, thus reinforcing an employer's right to prohibit certain conduct on its property, including solicitation and distribution, as long as employees are otherwise accessible to the union and the rule doesn't result in disparate treatment or discrimination. Employers now have more latitude to exclude nonemployee union representatives, with some important caveats.

  • 2nd Circuit adopts 'but for' discrimination test

    An employee alleging employment discrimination claims under Section 504 of the Rehabilitation Act (which applies to programs or activities receiving federal financial assistance) must show an adverse employment action wouldn't have occurred "but for" his disability, according to a recent ruling by the U.S. 2nd Circuit Court of Appeals (whose decisions apply to Vermont employers). The case is good news for employers since it raises the burden of proof for litigants.

  • DOL updates opinion on independent contractors for the gig economy

    Under the Trump administration, the U.S. Department of Labor (DOL) has taken a decidedly industry-friendly approach to the independent contractor analysis. If there was any doubt before, that was made clear by its recent issuance of a whopping 10-page opinion letter examining the nature of the relationship between a virtual marketplace company (think Uber) and the "gig" workers they employ (e.g., Uber drivers).

  • Supreme Court ruling raises stakes in Title VII claims

    If an employee files a timely Equal Employment Opportunity Commission (EEOC) charge, can she later raise new discrimination allegations after the filing deadline has passed? That's the issue addressed in a new decision from the U.S. Supreme Court. Spoiler alert: The answer is no, unless the employer—or more accurately, its attorney—doesn't notice. To understand the Court's ruling, it's helpful to understand the EEOC's role in discrimination claims.

  • They're back! Responding to 2019 no-match letters

    In March 2019, the Social Security Administration (SSA) began mailing educational correspondence (EDCOR)—also known as employer correction request (ECR) notices and formerly known as "no-match letters"—to employers that filed W-2 forms for 2018 containing at least one mismatched name and Social Security number (SSN). You should not ignore the notices. You must ensure you're complying with your obligations to resolve the errors. Failure to comply could result in an I-9 audit by U.S. Immigration and Customs Enforcement (ICE) and/or penalties from the IRS. To avoid noncompliance, you should act quickly.

  • Agency Action

    NLRB reveals rulemaking plans. The National Labor Relations Board (NLRB) in May announced its rulemaking priorities, which include proceeding with its rulemaking on a standard for joint employment. The Board's agenda also includes plans for rulemaking in the following areas: representation-case procedures; standards for blocking charges, voluntary recognition, and the formation of bargaining relationships in the construction industry; the standard for determining whether students who perform services at private colleges or universities in connection with their studies should be considered employees; and standards for access to an employer's private property.

  • Workplace Trends

    Think you've made a hire? Maybe not. A survey from staffing firm Robert Half shows that more than a quarter of workers (28%) have backed out of a job offer after accepting the position. Why would a jobseeker do that? The survey says 44% of those changing their minds backed out after receiving a better offer from another company. For 27%, a counteroffer from their current employer led to the change of heart. In 19% of the cases, the jobseeker reported hearing bad things about the company after receiving the offer. The cities where jobseekers are more likely to renege are San Diego, San Francisco, Chicago, Houston, Austin, and Miami.

  • SSA's new SSN no-match letters: what to do if you receive one

    The Social Security Administration (SSA) has resumed its practice of sending employers Social Security number (SSN) no-match letters, now labeled employer correction requests. It's important to proceed carefully if you receive one of these letters.

  • Words really do count: Well-drafted handbook protects VT employer in court

    A recent decision from the U.S. District Court of Vermont is a good reminder for employers about the importance of including clear, definitive, unambiguous language in an employee handbook.

  • Supreme Court will decide whether LGBT discrimination is unlawful

    The U.S. Supreme Court has agreed to decide the long-unresolved question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation or gender identity. The issue has been percolating in the lower courts for quite a while. As it frequently does, the Court declined to consider the question until there was a conflict between several appellate courts. Let's take a look at the history of the Court's decisions, the arguments on both sides of the issue, and what we can expect next.