A Busted Bracket May Be the Least of Your Concerns 

A Busted Bracket May Be the Least of Your Concerns  

We know there’s a lot going on right now – March Madness (yes, your employees are absolutely faking that sick day; no, you should not request documentation from them), the Severance season finale, and a new hit Netflix show with a disturbing plot and British accents. 

It’s also officially Spring (and in the northeast, nothing screams the start of Spring like a low temp of 36 degrees) – the season of rebirth, fresh starts, and the kind of seasonal allergies that make your body betray you and have you questioning your life choices. And speaking of change and decisions that might leave you questioning things, we’ve got some updates on the shake-ups happening under the new administration at the EEOC and the NLRB. 

With all the changes on the horizon, it’s a good time to sit back and catch up on what’s going on – before your allergies, or the EEOC, really get to you. 

Not Your Biden’s EEOC 

Based on the prior administration, there was some speculation that we wouldn’t be hearing much from the Equal Employment Opportunity Commission (“EEOC”) under a Trump presidency, and ohhhhhhh boy does that assumption look bad in hindsight. Instead, the EEOC, under acting chair Andrea Lucas, has clearly shifted priorities and is aggressively going after DEI initiatives. Some of these measures are good, one of the first lawsuits filed under the current administration was against a group of Taco Bell franchisees that allegedly allowed a regional manager to sexually harass female employees, and some are . . . shall we say, more troubling? Suffice to say, it looks like the EEOC is going to be very active, aggressively pursuing the new President’s policies and agenda. And with the Supreme Court poised to issue a decision significantly lowering the bar for bringing “reverse racism” complaints, we should expect the next few years to be significantly more active. ¿Yo quiero lawsuit? 

NLRB Memos Galore 

Achem, let’s try this again: Based on the prior administration, there was some speculation that we wouldn’t be hearing much from the National Labor Relations Board (“NLRB”) under a Trump presidency, and ding ding ding, this assumption looks spot-on. The NLRB under the Biden administration, led by general counsel Jennifer Abruzzo, was incredibly active and aggressive in its efforts to advance its pro-labor initiatives. GC Abruzzo issued several memoranda – technically nonbinding, but practically the law for many – setting forth the NLRB’s position on things such as non-compete agreements violating the law, severance agreements being invalid if they require employees to broadly waive certain rights, and the expansion of rights for student-athletes.  

Well, Presidenoing into limbo. But in true reality-show fashion, former-Member Wilcox sued the Trump administration, won the lawsuit, was reinstated (former-former-Member?), and now the NLRB can resume its normal operations. Just a heads-up: the GC memoranda offer guidance, and while it’s safe to assume there will be less enforcement of pro-labor initiatives, we need to wait and see how this show plays out. 

Commissions Not Wages? Fuhgeddaboudit 

Let’s talk about New Jersey for a moment. Our beloved home. The New Jersey Supreme Court recently ruled that commissions are “wages” under NJ law. Employers, take note: this decision highlights the importance of having commission agreements in writing. One employer lost a case because they didn’t have a written agreement outlining the terms of the commis t Trump “you’re fired” GC Abruzzo and the NLRB has a new sheriff in town, general counsel William B. Cowen. And GC Cowen wasted no time at all in expressing his opinions on the previous administration’s memoranda, issuing a memo that essentially threw out just about everything GC Abruzzo did like a bracket having Clemson in the Sweet 16. 

There’s been a ton of drama going on at the NLRB lately, including the attempted removal of one of its Members, Gwynne Wilcox, which led to a lack of quorum and the NLRB effectively g sions, even though the commissions were on PPE sales (remember those days?? Happy 5-year COVID anniversary, folks!). The bottom line here: don’t leave it to chance. Get those commission agreements in writing, detailing exactly when commissions are earned, and when they’re not. The transparency will help with employee-management, and just might even save you from a lawsuit. 

That’s all we have for today, but I’m sure we’ll be back with more craziness. In the meantime, have a great weekend everyone! 

And as always, if you’ve got questions, you know we’ve got answers.