Category Archives: Labor Relations

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NLRB: Employer Should Not Have Asked an Employee How Things Were Going During a Union Campaign

Campaign
Employers must tread carefully when communicating with employees during union organizing campaigns. A seemingly innocuous question can violate the National Labor Relations Act’s (NLRA) prohibition on employers soliciting grievances during a union organizational campaign and accompanying the solicitation with a promise, express or implied, to remedy such grievances.  However, it is not always clear what … Continue reading this entry

Trump Department of Justice Reverses Course on Class Action Waivers

DOJ
On June 16, 2017, the United States Department of Justice (DOJ) changed its position with respect to the enforceability of class action waivers in the labor and employment context. The move came via the DOJ’s filing of an amicus curiae brief in three consolidated cases pending before the Supreme Court (National Labor Relations Board v. … Continue reading this entry

What Ever Happened to the Department of Labor’s New Overtime Rule?

Overtime
As our readers may recall, last year we devoted a good amount of time addressing the Department of Labor’s (DOL) final rule on overtime exemptions. Under that rule, which was supposed to go into effect on December 1, 2016, the minimum salary required to be exempt from overtime requirements under the certain Fair Labor Standards … Continue reading this entry

In Pro-Employer Move, Trump Administration Withdraws DOL Guidance Letters

Guidance Letters
President Trump’s reputation as a no-holds-barred businessman was one of the pillars of his campaign. Six months into office, Trump’s administration is showing its pro-business (or pro-employer) tendencies through recent Department of Labor (DOL) guidance.  In this instance, it is the recent withdrawal of Obama administration guidance, rather than the issuance of new guidance, that … Continue reading this entry

NLRB: Nonunion Employees Do Not Have A Right To A Co-Worker’s Presence During Investigatory Interviews

NLRB
As we have frequently reminded our readers, even non-unionized employers need to pay close attention to the National Labor Relations Board’s (NLRB) rulings and opinions as to employees’ rights under applicable labor law. For example, the NLRB has focused on employee handbook provisions – applicable to both union and non-union employers, which it considers to … Continue reading this entry

Expanded Joint Employer Standard Under Attack; What Employers Should Do in the Meantime

Joint Employer
It appears that the days of expanded joint employer liability may be numbered, as the National Labor Relations Board’s (NLRB) 2015 Browning-Ferris decision comes under attack on multiple fronts.… Continue reading this entry

Through Rain, Sleet, or Snow: The USPS Delivers a Helpful Example of Well-Executed Employment-Related Internal Investigations

Background
Remember when the U.S. Postal Service (USPS) conjured up images of disgruntled employees engaging in workplace violence? Those days of incidents, often sparked by employee discontent over unresolved labor grievances and employment-related complaints, are apparently over.  The USPS has learned from the violent incidents of the 1980s and is now considered a go-to source for … Continue reading this entry

Another Joint Employer Test Makes Its Debut

On January 25, 2017, a federal appeals court that covers Maryland, Virginia, West Virginia, and North and South Carolina was the latest to craft a joint employer test, holding that a Maryland general contractor was the joint employer of its drywall subcontractor’s employees. As a result, the contractor was responsible for unpaid wages, including overtime, … Continue reading this entry

Happy New Year, Employers — Things are Likely to Improve at the NLRB

As every employer knows, the Obama era has not been kind from a labor law perspective. The five-member National Labor Relations Board (NLRB), which has had a Democratic majority during recent years, has issued a host of pro-union decisions over the past eight years. Along with new rules that speed up the union election process, those … Continue reading this entry

The Revised Persuader Rule — An Obituary

EEOC Developments
The “Persuader Rule” — Brief Background After several years of review and public comment, on March 24, 2016, the U.S. Department of Labor (DOL) issued its new interpretation of the so-called “Persuader Rule.” The new interpretation changed more than 50 years of DOL policy under which employers and consultants had no duty to report “persuasive … Continue reading this entry

Class Action Waivers in Arbitration Agreements: Proceed with Caution

Class action waivers in arbitration agreements exist in a legal gray zone, with the federal appellate courts split on their enforceability. Many employers believe that by forcing employees who sue them to do so only individually, they can avoid the prospect of very large judgements. The Ninth Circuit and Seventh Circuit have held that class action waivers … Continue reading this entry

Joint Employer Rule: Is Guidance on the Way?

As we have previously discussed, in its 2015 “Browning Ferris” decision, the National Labor Relations Board (NLRB) set a new standard for determining whether two entities are joint employers under federal labor law.  Since then, employers have faced a rocky road in trying to understand the implications of this standard.  Long-awaited guidance may finally be … Continue reading this entry

The “Persuader Rule” Permanently Enjoined

As we have previously reported, in March of 2016, the Department of Labor (“DOL”) issued a reinterpretation of the Persuader Activities Rule (The “Revised Rule”). This Revised Rule required that: employers must annually report agreements that have the object of dissuading employees from supporting unions (“persuader activities agreements”); consultants must report such persuader activities agreements … Continue reading this entry

What Will Happen When the Smoke Clears? Post-Election HR Strategies for 2017 and Beyond

Trade Secrets
The long and contentious presidential campaign is over.  So, now what?  What does President-elect Trump’s victory mean for employers? To explore this question, Foley and Lardner LLP’s Labor & Employment Practice group hosted a webinar titled “What Will Happen When the Smoke Clears? HR Strategies for 2017 and Beyond” on November 10, 2016.  The team … Continue reading this entry

Have a Management Rights Clause? It May Not Save You from Bargaining with the Union

Many union employers insist on strong management clauses in their labor agreements. Such clauses contain language reserving for the employer the right to adopt new rules and regulations.  A reasonable employer may assume that this language gives the company the right to adopt rules and regulations without first bargaining with its union. A recent decision … Continue reading this entry

What Past Practice?? NLRB Overhauls Back Pay Formula

Joint Employer
The National Labor Relations Board (NLRB) has done it again. Over the last few years, the NLRB has provided no shortage of topics for us to discuss, because it has made no secret of its aggressive agenda to expand employee protections under the National Labor Relations Act (NLRA), making rules and issuing decisions in furtherance … Continue reading this entry

Employer Handbook Policies Violate the National Labor Relations Act

As we recently noted, the National Labor Relations Board (NLRB) is laser-like focused on scrutinizing employer personnel policies.  In yet another example of this ongoing campaign, a recent administrative law judge (ALJ) decision highlights how some common employer’s handbook policies can be found to be unlawful.… Continue reading this entry

Fair Pay and Safe Workplaces Executive Order Moving Forward and the NLRB is On Board

Earlier this year, the final rule and guidance regarding President Obama’s controversial Fair Pay and Safe Workplaces (also known as the “Blacklisting”) executive order — which requires companies and organizations seeking government contracts in amounts of $500,000 or more to disclose past alleged violations of federal and state labor and employment laws — was sent … Continue reading this entry

An Unfair Employer Policy Roundup to Help Avoid Unfair Labor Practices

For the past few years, the National Labor Relations Board (NLRB) has been on the warpath over employer personnel policies (and in turn, we at Labor & Employment Law Perspectives have missed few opportunities to point out the NLRB’s relentless campaign against employers). Policy language which had been commonplace and acceptable for decades has suddenly … Continue reading this entry

Appellate Courts Set the Supreme Court Stage for Waiver Showdown?

Many of our readers are no strangers to the ongoing legal battle over the enforcement of arbitration agreements containing class action waivers. While the National Labor Relations Board (NLRB) has steadfastly maintained its position that such agreements interfere with employees’ rights to engage in protected concerted activity under the National Labor Relations Act (NLRA), federal … Continue reading this entry

Changing Past Practices – You Might Already Have the Right to do What You Want

Employers frequently find themselves in a situation where they have the right to do something under their labor agreements, but they have not been exercising the right. For example, the labor agreement might provide: “There shall be no pyramiding of overtime,” but under the employer’s pay practices, the employer has in fact been pyramiding (counting … Continue reading this entry

Joint Employer Standard Causing Jurisdictional Headaches

Ever since the National Labor Relations Board (NLRB) blew open the joint employer concept last year in Browning-Ferris, it has been a rocky road for all involved to understand the implications of this new standard. The latest bump involves a question of jurisdiction: What happens when one of the joint employers is subject to the … Continue reading this entry

Brady's Benching Gives Lesson in Court Review of Arbitration Decisions

Earlier this week, Bills and Jets fans (and at least one Packer fan) rejoiced as the Second Circuit Court of Appeals reinstated the NFL’s four-game suspension of New England Patriots quarterback Tom Brady based on a finding that Brady had participated in a scheme to deflate footballs and attempted to cover it up. In the … Continue reading this entry

New DOL “Persuader” Rule Stimulates Exaggerated Persuader Activities by Proponents and Opposition

We will try to keep this straightforward and polemic free. We will try. The last time there were any significant changes to the National Labor Relations Act was in 1959, when Congress passed the Landrum-Griffin bill which, among other “reforms,” imposed new reporting and disclosure obligations on unions, management, and “labor relations consultants.” One of … Continue reading this entry