Labor & Employment

The Husch Blackwell Cortex office is co-located with innovators, entrepreneurs and start-up companies and provides quality consultation in a cost effective manner.  The Cortex Innovation Community is moving St. Louis toward becoming a world-class technology innovation district.

Start-up companies typically encounter a host of legal issues that cut across many legal disciplines. The goal of our Cortex initiative is to provide creative and innovative solutions targeted to the particular needs of the start-up and to provide these solutions in a cost effective manner.  Working with a start-up at their early stages is critical to their success.

On November 22, 2013, the Supreme Court of Pennsylvania issued an order in Tooey v. Ak Steel Corp., 81 A.3d 851 (Pa., 2013) that had major implications for toxic tort litigation in the state.  Plaintiff John Tooey allegedly worked for Ferro Engineering as an industrial salesman of asbestos products from 1964 to 1982.  In 2007, Mr. Tooey developed mesothelioma; he passed away the following year.  The Tooey court considered whether the manifestation of an occupational disease outside of a 300-week period set forth by the Pennsylvania Workers’ Compensation Act removed a claim from the protection of the Act, such that the exclusivity provision of the Act did not apply.  The court concluded that claims for occupational diseases with long latency periods – over 300 weeks – do not fall within the purview of the Act and, therefore, the exclusivity provision is inapplicable.

In 2014, several payroll tax service providers allegedly embezzled millions of dollars in federal payroll tax payments from their clients. In June, the owner of Checkmaster Payroll Service in Massachusetts was indicted for allegedly stealing client funds that were supposed to have been used to pay clients’ federal employment taxes. The owner allegedly provided clients with “client copy” tax returns indicating that the taxes had been paid to the IRS, when they had not.  The owner also allegedly falsely told his clients that payroll tax delinquency notices that they had received from the IRS were the result of administrative errors by the IRS, not his company’s failure to remit the payroll taxes.

Employers in sectors such as manufacturing, energy and agriculture faced with significant shortages of skilled labor, received a major boost from Congress last week. The long-awaited job training program reform bill “Workforce Innovation and Opportunity Act” received bipartisan approval. President Obama has expressed support for the legislation and is expected to sign it into law later this week.

The last year or so has not been a good one for the NLRB.  Time and time again the courts have shot down the Board in a number of matters, including the Board’s notice posting rule, its attempt to modify its own election rules for processing representation petitions, as well as D.R. Horton being denied enforcement and otherwise ignored by every court of appeals which has reviewed the issue.

In its 1984 decision in Hansome, the Missouri Supreme Court required an “exclusive causal connection” between the employee’s exercise of rights under the workers’ compensation statute and the adverse action the employee challenged.  No more.  Today, the Missouri Supreme Court swept Hansome aside and concluded the employee need only show that his exercise of rights under the workers’ compensation statute was a “contributing factor” to the adverse action. 

The United States Supreme Court has agreed to hear Integrity Staffing Solutions, Inc. v. Buck, which revolves around whether activities are “integral and indispensable” (and so compensable) or “preliminary or postliminary” (and so not). Integrity Staffing provides warehouse workers on a contract basis to its clients. The employees in question filled orders for retail goods.

The U.S. Supreme Court extended the whistle-blower protections provided in the Sarbanes-Oxley Act to include employees of privately held companies that are contractors or subcontractors of a public company.  The high court’s ruling in Lawson v. FMR LLC, marks a significant expansion of the statute and opens the door for claims of a new class of workers from roughly 5,000 public companies to potentially 6 million private ones, including even the smallest “Mom and Pop” businesses.

U.S. businesses often use the H-1B visa classification to employ non-U.S. workers in positions requiring a college degree or the equivalent. In most cases, H-1B classification conveys work authorization for a period of up to six years. The law sets a limit of 65,000 new H-1Bs per fiscal year, with an additional 20,000 set aside for workers with a master’s degree or higher. These limits are known as the “H-1B caps.” In 2013, the H-1B cap was exceeded for both categories in the first week applications were accepted. Many employers were disappointed when their applications were rejected in the ensuing lottery conducted to select the applications that would be accepted for processing under the caps.