Labor Board Hounded by Another Appointment Controversy

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For much of the Obama Administration, the National Labor Relations Board (Board) has been operating as, at least from the perspective of some, a rogue agency (and not just because of its willingness to overturn precedent to expand union and employees’ rights). With just two of the required five members for the first two years of the Administration, the Board lacked a quorum to make binding decisions. Last year, the U.S. Supreme Court unanimously invalidated more than a year-and-a-half of Board decisions, ruling that the president’s recess appointments of three Board members were unconstitutional. In a further check on the Administration’s actions relative to the Board, on August 7, a federal appeals court ruled unanimously that the president’s appointment of the Board’s top prosecutor and legal advisor was also unlawful. Continue reading this entry

Separately Assessing Separation Agreements

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Separation or severance agreements —which typically provide a terminating employee with some kind of cash payment, temporary salary continuation, or other gratuitous benefit in exchange for a release of claims — have their usefulness in many circumstances. Employers often use them in connection with reductions in force, both as a means to cushion the blow for employees whose positions are eliminated and to minimize the risk of multiple claims. It may also make sense when an employer must terminate a problem employee for performance of behavioral reasons to consider offering the miscreant employee a separation agreement primarily as a way to mitigate risk. It also seems to be somewhat common in this start-up era that entrepreneurial companies, focused on product or platform development but (understandably) lacking in human resources know-how, believe they are required to provide separation benefits whenever employees depart — even in the case of a voluntary resignation — and do so in all circumstances based on that mistaken belief. Continue reading this entry

The Long Reach of the National Labor Relations Act

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Non-union employers are often under the misimpression that they are not affected by the National Labor Relations Act (NLRA) — the federal statute governing union-related issues in the private sector. A recent court decision stands as yet another reminder that this is not the case, and that non-union employers can still run afoul of the NLRA’s ever-changing requirements (and that employees and their advocates are increasingly using the NLRA to pursue claims against employers, even non-union employers). Continue reading this entry

We Thought It Might Be Getting Better … But Class Certification is Still On the Rise

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The explosion of wage and hour class action litigation in the last 10 to 15 years or so has shined a spotlight not only on wage and hour practices themselves, but also on the critical question of whether an employer’s practices can and should support class certification. Class certification has accordingly become an issue of serious concern for employers; a lawsuit filed by one current or former employee over a relatively small wage amount can quickly multiply into a combined lawsuit of thousands — with significant amounts at issue — if the case gets certified as a class action. Continue reading this entry

D.C. Circuit Releases Employer From NLRB Jail

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We have frequently commented on the National Labor Relations Board’s (NLRB) expansion and creation of sweeping protections to employees engaging in union organizing and other activities protected under the National Labor Relations Act (Act). As but one example, we recently commented on the Board’s concerning decision to consider offensive racial comments protected concerted activity under the Act. The Board – in yet another split decision by Board members with different political allegiances – had previously found employees could not be disciplined for suggesting to their employer’s customers that they are incarcerated inmates when approaching customer homes. In a victory for common sense, a federal appeals court in Washington, D.C., refused to enforce the Board’s conclusion. Continue reading this entry