Category Archives: Labor Relations

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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

Do the NLRB’s and the EEOC’s Confidentiality Standards Conflict?

The recent NLRB ruling on confidentiality of interviews, which we previously discussed here, may conflict with the EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (the “Enforcement Guidance“).

The Enforcement Guidance establishes that “[w]hen harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action, the employer … Continue Reading

NLRB Representation Rule Still Invalid

On July 27, 2012, Judge Boasberg of the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s (“Board”) motion to reconsider his holding that that the Board’s expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011.  In his earlier decision,  Judge … Continue Reading

Confidentiality Directives May Violate The NLRA

In keeping with its current interest in examination of standard practices of non-union employers, the National Labor Relations Board (“Board”) has now held that the common directive to employees to not discuss matters under investigation with co-workers may interfere with, restrain or coerce employees in the exercise of their statutory rights under Section 7 of the National Labor Relations Act … Continue Reading

Can An “At-Will” Employment Disclaimer Violate the NLRA?

The National Labor Relations Board (the Board) has started to move aggressively against “at-will” employment disclaimers that many employers include in their handbooks. Typically, employers include an “at-will” employment policy, which states that employees may be terminated at any time for any lawful reason, with or without notice and with or without cause.  Further, employers advise employees that their “at-will” … Continue Reading

NLRB Issues Third Social Media Report

On May 30, 2012, the National Labor Relations Board’s (“Board”) Acting General Counsel, Lafe Solomon, issued his Third Report on Social Media Cases. This Report describes the restrictions on employee use of social media that an employer may lawfully include in its policies.

Under the National Labor Relations Act (“Act”), an employer may not implement a policy that would … Continue Reading

NLRB Member Terence F. Flynn Resigns

On May 26, 2012, Board Member Terence F. Flynn submitted his resignation to  President Barack Obama and to NLRB Chairman Mark Gaston Pearce.  The resignation is effective July 24, 2012.  However, Mr. Flynn immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB.

Mr. Flynn was sworn in … Continue Reading

Middle District Judge Disagrees With NLRB Over Class and Collective Action Waivers

In a decision filed on May 18, 2012, Oliveira v. Citicorp North America, Inc. and Citigroup, Inc., Case No. 8:12-cv-251-T-26TGW (M.D. Fla. 2012), Judge Richard A. Lazzara of the Middle District of Florida held that a complete waiver of class and collective actions in either a judicial or arbitration forum was enforceable.  This decision directly conflicts with the National Labor … Continue Reading

NLRB Suspends Implementation Of Representation Case Process Changes

According to a D.C. federal court, another regulation issued by the National Labor Relations Board (the “Board”) is unlawful.  This time, the Board’s so-called “quickie election” rule, which would shorten the time period between an union petition and the election, has been struck down.  This is an important outcome for employers, because the new regulation, if it had been approved, … Continue Reading

NLRB Seeks To Invalidate Arbitration Agreements

On April 30, 2012, the National Labor Relations Board (“Board”)  issued a complaint alleging that 24 Hour Fitness USA, Inc. violated the National Labor Relations Act (“Act”) by requiring that all employment disputes be resolved by an arbitration in which only individual, and not class or collective, claims could be brought.

24 Hour Fitness, which operates centers across the country, … Continue Reading

NLRB Acting General Counsel Issues Memo on New Representation Case Procedures

Yesterday, NLRB Acting General Counsel Lafe Solomon outlined how regional offices will implement new representation case procedures that take effect on Monday, April 30.  Of benefit to employers, the guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged.  Briefly, the changes to the rules are:

1) An explicit … Continue Reading

NLRB Stays Implementation of Notice Posting Rule

The D.C. Circuit Court of Appeals has temporarily enjoined the National Labor Relations Board’s Rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.  In  light of this order, the Board has stated that regional offices will not implement the Rule, pending the resolution of the issues before the DC Circuit Court.  … Continue Reading

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