In a surprising move, the National Labor Relations Board has overturned its recent decision that had overruled an expansive joint employer standard set forth by the previous Obama-era Board. So, at least for the time being, where an entity has reserved the right to control employees with another entity – even if that control was never exercised – the Board … Continue Reading
Category Archives: Labor Relations
Subscribe to Labor Relations RSS FeedNew NLRB Decisions Favor Employers
With the change to a Republican President and the appointment of new NLRB members, the expectation that more pro-employer decisions will be issued has begun. Several NLRB decisions have re-established prior labor law precedents that were overturned by the Obama era NLRB. A prime example of this is the recent decision involving Raytheon Network Centric Systems that restored the 50-year-old … Continue Reading
Joint Employer Standard Relaxed – For Now
Business owners, franchisors, contractors, and staffing agencies can breathe a little easier – for the moment – following the National Labor Relations Board’s reversal last month of a controversial Obama-era standard that broadly defined “joint employer.”
In the 2015 Browning v. Ferris decision, the NLRB overturned decades of precedent and created an expansive definition of joint employer. Joint employers included … Continue Reading
Workplace Civility Legal Again
Rules mandating workplace civility and protection of confidential business information — recently the target of the National Labor Relations Board — are lawful again. Non-union employers take note: no longer will the Board automatically find an unfair labor practice for policy, work rule and handbook provisions that employees would construe as prohibiting protected concerted activity. Based on The Boeing Company … Continue Reading
NLRB Gift: Staying Non-Union May Be A Little Easier
The NLRB offered a holiday gift to employers this year, overturning an Obama-era decision that allowed unions to organize “micro-units” of employees, by restoring a more employer-friendly standard to determine an “appropriate bargaining unit.” In PCC Structurals, Inc., the NLRB overturned the 2011 decision in Specialty Healthcare and Rehabilitation Center of Mobile which had allowed the unionization of “micro-units.” … Continue Reading
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
2015 L&E Developments
As we begin 2016, it is a good time to look back at 2015 labor and employment law developments that employers must keep in mind during the new year. 2015 was indeed a busy year.… 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
No, You Cannot Prohibit Employees from Protesting or Discussing Their Wages
A reminder to employers concerned about employees’ discussing their wages or acting in concert to petition for higher wages: This is legally protected activity that employers cannot prohibit or restrain. A recent National Labor Relations Board decision involving a Chipotle restaurant chain in Missouri illustrates this point.… 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
