News & Commentary

May 4, 2017

Isis Freeman

Isis Freeman is a student at Harvard Law School.

The New York Times reports that Apple plans to create a $1 billion fund for the advancement of manufacturing jobs in the United States. In an interview with CNBC, Apple’s chief executive Timothy D. Cook noted, “Those manufacturing jobs create more jobs around them because you have a service industry that builds up around them.” The company hopes to announce its first investment from the new fund sometime this month.

The House Rules Committee will meet this week to discuss an amendment to the FLSA. The Working Families Flexibility Act is a Republican-sponsored bill that would create the option for employers to offer one-and-a-half hours of paid time off in lieu of one hour’s worth of time-and-a-half overtime wages. The bill recommends capping the paid time off hours available at 160. A blog post notes that the House Education and Workforce Committee approved the bill last week.

The Circuit Court for the District of Columbia reversed an NLRB decision last week in the case of Bellagio LLC v. National Labor Relations Board, finding that the Bellagio Hotel and Casino did not interfere with a bellhop’s “Weingarten rights” under the NLRA. Weingarten rights assert that employees have the right under the NLRA to have union representation during any investigatory interviews. This right must be affirmatively requested by the employee, after which an employer may (1) grant the request, (2) end the interview, or (3) offer the employee the option between holding an interview without representation or not having an interview.

Following a complaint from a hotel guest about the bellhop, Bellagio management attempted to interview the bellhop, Gabor Garner, who requested union representation. Bellagio suggest Garner contact a union representative on his own, but he refused. The hotel then attempted to find a representative, but was unsuccessful. Upon returning to the interview room where Garner was waiting, management asked Garner if he would like to make a written statement instead, which he also refused. Management then ceased the interview and placed Garner on paid suspension pending investigation until Garner returned the following day with his union representative to conduct the interview.

The NLRB considered this course of action to be deprivation of Garner’s Weingarten rights to union representation. The D.C. Court of Appeals reasoned, however, that the Bellagio “never resisted or undermined Garner’s invocation” of his right; that the “Bellagio’s supervisors never threatened or intimidated Garner”; and that the management personnel “stopped asking questions after [Garner] requested a Union representative.” The Court saw the Bellagio’s course of action as falling within the third option under the NLRA.

ESPN reports that the class-action lawsuit filed by former University of Southern California football player Lamar Dawson was dismissed by Judge Richard Seeborg in federal court in California. Dawson alleged that he and his proposed class of Division I Football Bowl Subdivision (FBS) football players qualified as “employees” under the FLSA. As such, they sought relief in the form of minimum wage and overtime payments owed them given the NCAA and Pac-12’s alleged violation of the FLSA and California Labor Code. Judge Seeborg found the claims to be “based on an untenable legal theory.”

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