Tag Archives: NLRB

NLRB’s New Joint Employer Standard Creates Enormous Uncertainty

Late last week, the National Labor Relations Board published a decision that will make many business leaders’ heads spin. By pronouncing a new legal standard to be used to determine if a business is a “joint employer” of another’s employees, the Board has created an unprecedented amount of uncertainty for all types of businesses. Under this … Continue reading this entry

NLRB Calls Audible — No Union for Northwestern

Over a year ago, the regional office of the National Labor Relations Board (NLRB) in Chicago concluded that scholarship athletes on the Northwestern University football team were “employees” within the meaning of the National Labor Relations Act, giving them the right to unionize and bargain over terms and conditions of their purported employment. The ruling garnered … Continue reading this entry

The Long Reach of the National Labor Relations Act

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 … Continue reading this entry

D.C. Circuit Releases Employer From NLRB Jail

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 … Continue reading this entry

Do You Know Who Your Employees Are?

Employers are beginning to learn that they may have far more employees than they think. A driver for the ride sharing company Uber was considered an “employee” by the California Labor Commissioner’s Office earlier this month. And just last August a national franchisor was considered a joint employer of its franchisees’ employees by the Office of … Continue reading this entry

Unfortunately, Offensive Racial Comments Don’t Always Get You Fired (At Least Under Labor Law)

Under the National Labor Relations Act, certain union activities are considered “protected.” That is, employees engaging in union activity, or union representatives carrying out their duties in the context of grievance processing or labor negotiations, are sometimes protected from discipline even though their conduct would otherwise normally result in discipline under their employer’s policies. For … Continue reading this entry

“Guidance” That Does Not Guide: NLRB General Counsel Issues Interpretations of Common Employee Handbook Policies

We have not exactly been shy in expressing concern regarding many of the National Labor Relations Board’s (NLRB) recent actions, nor hesitant to opine that its actions appear purposefully designed to advantage unions and create expansive new employee rights from the language of the 80-year-old National Labor Relations Act of 1935 (NLRA). Much of the recent criticism has centered on … Continue reading this entry

Congress Rallies Against New Union Election Rules

The currently Republican-controlled U.S. Congress has made it clear that pushing back on the National Labor Relations Board’s (NLRB) recent efforts, which appear motivated by a mandate to tip the scales in favor of employees and to the advantage of union organizing, is high on the agenda. Last week, the Senate revealed its latest effort … Continue reading this entry

NLRB Again Throws Out Decades of Precedent and Recasts its Standards Regarding Deferral to the Arbitration Process

In recent weeks, we have commented on two recent moves by the National Labor Relations Board that have reversed long standing precedent and dramatically changed the labor law landscape: 1) a decision by the Board to open employer email systems to union organizing in some circumstances, and 2) a rewrite of its election procedures to … Continue reading this entry

Open the Floodgates: “Reply All” Now Also Means “Easy Union Organizing”

Well we pretty much knew this day was coming. Your email system has just become a union’s most effective tool to organize your employees. In May of this year, we predicted the National Labor Relations Board would overturn its 2007 Register Guard decision in which the Board determined, along political lines, that employees have no specific … Continue reading this entry

Button Bans – Be Careful

Employers often implement dress code policies and practices which prohibit employees from wearing all types of buttons or insignia in the workplace. These kinds of policies may be put in place for customer relations, appearance or other purposes. Unfortunately, such a policy runs a significant risk of being found as illegal by the National Labor … Continue reading this entry

Employers Are Not Going to "Like" This NLRB Decision on Social Media

The National Labor Relations Board (“NLRB”) has issued yet another decision which should cause all employers, even those without unions, to think very carefully before disciplining any employee for their actions on social media. In its recent Triple Play Sports Bar ruling, the Board found that clicking the “Like” button on Facebook was protected concerted … Continue reading this entry

You’re NOT Paranoid – the Agencies ARE Ganging Up

Feeling a bit paranoid these days, especially where government oversight or agency investigations are involved? Your perception of reality is probably being driven less by paranoia and more by the upticks in government activity, and that twitchy sense of more government scrutiny is actually well justified. In addition to executive agency actions placing more requirements … Continue reading this entry

Micro Unions Are Here to Stay: Cosmetics Workers Made Up for Unionizing but Shoes Salespeople Need to Find a Better Fit

The question – or controversy, depending on who you talk to – about the propriety of “micro-units” or “micro-unions” has been a pressing issue for employers since the National Labor Relations Board issued its Specialty Healthcare decision in 2011. The concern has been that unions, as a way of getting a foot in the door … Continue reading this entry

NLRB Fallout From President’s Unconstitutional Recess Appointments Continues

As we noted when the decision was released, the Supreme Court ruled unanimously that the President’s 2012 recess appointments to the National Labor Relations Board were unconstitutional. Two weeks later, the developments from the decision continue to come in. Officially, the Board has been largely silent. After litigating hard for two and a half years … Continue reading this entry

NLRB: Employers Responsible for Extra Taxes on Employees' Back-Pay Awards

Employers should take note of the NLRB’s most recent decision that imposes additional burdens on employers where back wages are ordered in unfair labor practice cases. On December 20, 2012, the NLRB released its decision in Latino Express, Inc., which ordered the employer to compensate employees for any additional federal and state income taxes incurred as … Continue reading this entry

Car in the Pond Sinks Sales Rep

A recent decision by the NLRB provides insight and guidance to employers who are struggling to deal with the ever-expanding issues arising from employees’ use of social media. The Karl Knauz Motors case involved a BMW dealer that held an event called the BMW Ultimate Driving Experience, in an attempt to stimulate car sales. One … Continue reading this entry

NLRB Strikes Down Part of Costco’s Social Media Policy

On September 7, 2012, in a decision that is likely to have wide-ranging implications for companies’ social media policies, the NLRB issued a decision finding that Costco’s policy prohibiting defamatory statements about the company violates Section 8(a)(1) of the National Labor Relations Act (the Act) (Costco Wholesale Corp. and United Food and Commercial Workers Union, … Continue reading this entry

NLRB Tries to Lift Cone of Silence

Recent editions of Foley’s Legal News: Employment Law Update have explained that all employers — even those without a unionized workforce — must take care to avoid unwittingly being subject to unfair labor practice charges when implementing and enforcing company-wide employee policies. For example, the NLRB recently intimated that at-will employment policies, which state they … Continue reading this entry

Potty Mouth Employee Loses Protection

The NLRB ruled that it was unlawful for Plaza Auto Center to fire car salesman Nick Aguirre after he swore at the company’s owner. Mr. Aguirre had only worked at the car dealership for two months, but in his short tenure, he raised a lot of complaints about his working conditions. Mr. Aguirre constantly asked … Continue reading this entry

NLRB Delays Its Notice-Posting Rule Once Again

Regular readers of Foley’s Legal News: Employment Law Update will know that the NLRB has proposed a rule that would require most private sector employers in the United States to post a notice that informs their employees about their rights under the National Labor Relations Act. These rights include the right to form, join, or … Continue reading this entry

NLRB Potpourri Is Not Smelling So Good for Employers

In the past few weeks, there have been a number of developments from the NLRB that will impact employers with both unionized and non-union work forces. Here is a brief summary: On December 22, 2011, the NLRB published a final rule in the Federal Register amending its election case procedures to reduce unnecessary litigation and … Continue reading this entry

NLRB Delegates Certain Authority to General Counsel in Preparation for Loss of Quorum

On November 3, 2011, the NLRB issued an order contingently delegating to the general counsel full authority over court litigation matters that would otherwise require Board authorization and full authority to certify results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act. The delegation over court litigation … Continue reading this entry