Category Archives: Labor Relations

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DOJ About-Face: Supporting Class Action Waivers, Parting Ways with the NLRB

The Department of Justice (DOJ) has just switched sides in a trio of high profile arbitration cases now pending before the Supreme Court, joining with the employers to argue that the National Labor Relations Board’s (NLRB’s) ban on the use of class action waivers in arbitration agreements oversteps its authority and is misguided.… Continue Reading

New, Even Broader, Joint Employer Test Adopted

Employers may think the concept of joint employer being pushed by the National Labor Relations Board (NLRB) is overly broad, but a recent decision by a federal appellate court in Richmond, Virginia adopts the most expansive definition yet. Last month the federal appellate court pronounced that two entities or individuals should be considered a joint employer of the same worker … Continue Reading

Will The NLRB’s Protection of Unacceptable Conduct Last?

It’s ironic, isn’t it? While the EEOC could find an employer liable for tolerating racist or sexist remarks by employees, the NLRB has repeatedly found employers liable for failing to do so under the guise of protecting “concerted activity” by employees. Will the agency’s rulings against employers be supported by the courts? And will the pattern of protecting such employee … Continue Reading

Seventh Circuit Holds That Collective and Class Action Waivers in Arbitration Agreements are Unenforceable

The Seventh Circuit Court of Appeals held that collective and class action waivers contained in arbitration agreements with employees are unenforceable and violate the National Labor Relations Act. Reaching the opposite conclusion as the Fifth Circuit Court of Appeals and siding with the NLRB, the Seventh Circuit also held that the Federal Arbitration Act does not alter this outcome. The … Continue Reading

Department of Labor: Joint Employment Is Increasingly Common

On January 20, 2016, the Wage and Hour Division of the U.S. Department of Labor issued guidance on joint employment under the Fair Labor Standards Act and Migrant Seasonal Agricultural Worker Protection Act. The DOL’s guidance comes on the heels of a landmark decision of the NLRB, which, as discussed in greater detail here, broadened the definition of “joint … Continue Reading

NLRB Finds No Joint Employment Relationship In First Decision Applying Browning-Ferris

In its first application of the landmark Browning-Ferris decision, the National Labor Relations Board (NLRB) has determined that ACECO, a contractor, was not a joint employer with Green Jobworks, its staffing agency. In Browning-Ferris, the NLRB held that two or more entities would be considered joint employers if each one possessed sufficient control over employees’ essential terms and conditions … Continue Reading

NLRB Changes Standard for Determining Joint Employer Status

The NLRB has issued a landmark decision changing its current standard for assessing “joint employer” status in both unionized and non-union workplaces. This is significant, because, even if the company is not the actual employer of workers, the company may be required to bargain with a Union and held liable for unfair labor practice charges if found to be a … Continue Reading

D.C. Circuit Reinstates Home Health Care Regulations

Earlier this year, we brought news that the DOL had revised its regulations applicable to home health care workers. Those regulations, which related to domestic workers who provide “companionship services,” narrowed significantly the classes of workers who were exempt from the minimum wage and overtime protections of the FLSA by removing the ability of home health care agencies to claim … Continue Reading

The NLRB Expands Its Reach in the Non-Union Workplace

The National Labor Relations Board continues to infiltrate the workplace even where there are no unions. Standard workplace policies — including those relating to employee conduct, protecting intellectual property, use of personal electronics, and conflicts of interest — are unlawful, according to a recent memorandum issued by the NLRB General Counsel. Basic contract and policy provisions requiring employees to maintain … Continue Reading

Employment Law Trends for 2015

Few can quibble with the fact that 2015 has been a busy year for employment law. From historic pronouncements of the Supreme Court concerning fundamental and civil rights, to the Department of Labor’s release of guidance to curb misclassification and proposed new regulations to update the Fair Labor Standards Act’s “white collar” exemptions, to the General Counsel of the National … Continue Reading

Input Sought on New Rules to Extend Overtime to More Workers

Employers and other stakeholders have just a few weeks in which to provide input on proposed regulations which would raise the salary threshold for workers exempt from overtime to $50,440 a year. On July 6, 2015 the Department of Labor proposed new regulations which would result in extending overtime pay to an estimated five million workers. The regulations would tie … Continue Reading

Department of Labor: Most Workers Classified As Independent Contractors Are Employees

On July 15, 2015, the Wage and Hour Division of the Department of Labor declared that most workers who are classified as independent contractors are actually employees and cited the erroneous designation of employees as independent contractors to be “one of the most serious problems” at workplaces in the United States. The DOL issued an “Administrator’s Interpretation” that … Continue Reading

Texas Federal Court Rules in Favor of NLRB’s “Quickie” Election Rules

A federal judge in Texas recently rejected a challenge to the NLRB’s “quickie” election rules that went into effect on April 14, 2015. One of the significant changes resulting from the enactment of the new rules is the shortening of the timeline for union elections, which the NLRB asserts “modernize[s] the representation case process and fulfill[s] the promise of Continue Reading

The NLRB Invades The Non-Union Workplace

Employers beware!  Although the Board’s attempt to require employers to post a notice of employees’ federal rights has been defeated, the agency remains active in its regulation of the non-union workplace.  The Board now has a full complement of members, with a Democratic majority, and is posed to continue to render decisions that will impact all places of work.

Too … Continue Reading

NLRB Has Full Complement Of Board Members

The Senate confirmed all five of the President’s nominees to serve as National Labor Relations Board (the “Board”) members on July 30, 2013.  This gives the Board a full complement of Senate-confirmed members for the first time in a decade.

The Board now includes Democrats Board Chairman Mark Gaston Pearce, whose term was set to expire in August, Kent Hirozawa, … Continue Reading

Email Policy Cannot Be Used to Squelch Protected, Concerted Activity

Employers must ensure that their email policies advise employees of the appropriate use of email.  Likewise, employers must enforce appropriate use policies in a consistent matter.  However, employers do not have unfettered discretion to discipline employees for “inappropriate” email content.  In a recent ruling, the NLRB found that an employer had committed an unfair labor practice when disciplining employees … Continue Reading

Skinsmart Dermatology Avoids a Legal Blemish Over Facebook Posting

The “Facebook Firing” cases continue with the NLRB deciding more often than not that employees fired for Facebook postings engaged in “protected concerted activity” under the National Labor Relations Act (“NLRA”) and are entitled to reinstatement.

However, a break from the typical outcome occurred in May, 2013, when an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director … Continue Reading

NLRB General Counsel Suggests Language That Complies With Banner Health

In a memorandum dated January 29, 2013, but made public on April 16, 2013, the NLRB’s Office of General Counsel, while confirming that an employer’s blanket confidentiality rule, which precludes employees from disclosing information about ongoing investigations into employee misconduct, is unlawfully overbroad under the Board’s decision in Banner Health, 358 NLRB No. 93 (2012), held that an employer’s … Continue Reading

Employers Must Examine Their Employee Agreements for Compliance With the National Labor Relations Act

Recently, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued a decision in Quicken Loans, Inc., which found confidentiality and non-disparagement provisions to be unlawful under the National Labor Relations Act (NLRA). The decision is not surprising, and is in accord with the trend of the NLRB to find common employer conditions to violate the … Continue Reading

Recess Appointments To Board Invalid – Summary Of Affected Decisions

The United States Court of Appeals for the District of Columbia Circuit issued an order on January 25, 2013, which struck, as unconstitutional, President Obama’s recess appointments to the National Labor Relations Board (“NLRB”). Noel Canning v. NLRB (Case No. 12-1115) Typically, recess appointments to the NLRB,  pursuant to the Recess Appointments Clause of the Constitution, are made during Senate … Continue Reading

President Obama’s Mark on Employment Law – What do Employers Have to Look “Forward” To in the Next Four Years?

Now that the frenzy of the election has died down, Florida has counted its votes, and the major media outlets have moved on from dissecting party rhetoric, the question remains: What does President Obama’s reelection mean for the country?  And for the purposes of employers and those in HR, what changes will we see in his second term in labor … Continue Reading

Does Your Policy Covering Employees’ Use of Social Media Cross the Line – And Just Where Is That Line Anyway?

Two recent rulings by the National Labor Relations Board (Board) involving employees’ use of social media make it clear that employers who want to avoid violating federal labor laws are well served to revisit their social media policies and, perhaps along with their counsel, take a close look at whether these policies violate the National Labor Relations Act (Act).  Although … Continue Reading

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