Category Archives: National Labor Relations Board

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It’s a Topsy-Turvy Workplace – Right Now, Common Sense is on Top

Common
Breaking news – sometimes agency guidance, or even enforcement positions, change! A recent example comes from the National Labor Relations Board (NLRB) with its June 6, 2018, memorandum regarding “Guidance on Handbook Rules Post-Boeing.” While the lack of consistency can be frustrating for employers, there is good news this time: Common sense seems to have … Continue reading this entry

Supreme Court Ends the Debate and Upholds Class Action Waivers

Waivers
Welcome news for many employers rolled out of Washington, D.C. earlier this morning. The Supreme Court has ended a long-running debate over the enforceability of arbitration agreements with class action waivers in the employment context, particularly as applied to the wage and hour class action litigation. In short, such waivers are enforceable and do not … Continue reading this entry

Liability for Employee Misclassification is on the NLRB’s Chopping Block

Liability
The National Labor Relations Board (NLRB) has recently taken one step forward, two steps back in terms of providing certainty to employers that use independent contractors. On February 16, the NLRB invited briefing on the issue of under “what circumstances, if any, should the Board deem an employer’s act of misclassifying statutory employees as independent … Continue reading this entry

More on the Trump NLRB and What it Means for Employers

Trump
In recent weeks we have commented on the spate of new pro-employer decisions from the National Labor Relations Board (the Board).   These decisions, among others,  have included: Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017)(reasonable employer policies, such as Boeing’s ban on the use of cameras and cell phones, are lawful), Hy-Brand Industrial Contractors, … Continue reading this entry

Trump NLRB Reverses Rule on 'Micro-Units,' Continues Overhaul of Obama-Era Rulings

Trump
As we discussed last week, the National Labor Relations Board (NLRB) has been working hard during the holiday season to reverse landmark decisions issued by the Obama-era Board. The Board’s efforts to reshape federal labor law continued last week with its decision overruling Specialty Healthcare and changing the standard for determining when a proposed bargaining … Continue reading this entry

NLRB Reverses Obama-Era Joint Employer Test

Reverses
Over the course of one afternoon, the National Labor Relations Board (NLRB) issued two significant decisions that together overturned several of the Obama administration’s most polemic legal positions under the National Labor Relations Act (NLRA). Here we discuss the NLRB’s decision to overturn the 2015 Browning-Ferris Industries case.  In Browning-Ferris, the NLRB adopted an expansive … Continue reading this entry

NLRB Delivers Holiday Gift to Employers in the Form of New Standard for Workplace Civility Rules

NLRB
As explained in this companion article, the National Labor Relations Board (NLRB) gave employers an early holiday gift with its reversal of the Obama-era joint employer test. But the Board had even more holiday cheer to spread to employers.  On December 14, it overruled its 2003 decision in Lutheran Heritage Village – Livonia.… Continue reading this entry

New NLRB General Counsel Sets New Tone For The "Trump Board"

Trump
We are now almost a year into the Trump presidency, but we are still grappling with how the administration will address many issues throughout the country. To a certain extent we can never be sure of a clear path, as President Trump has not always taken consistent positions on policy issues. However, from time to … Continue reading this entry

Another Joint Employment Development, And Still More Uncertainty

Joint
For the last several years, “joint employment” (whatever that now means legally) has been anything but the gift that keeps on giving for employers. First, joint employment became a tool that the previous Administration locked onto in seeking to expand wage and hour liabilities and to open up potential union organizing opportunities and labor relations … Continue reading this entry

The Trump Board is All Aboard: EEOC Still at the Station

EEOC
On September 25 the U.S. Senate confirmed the nomination of William Emanuel to the National Labor Relations Board (NLRB). This quickly followed the previous confirmation of Marvin Kaplan, thus bringing a full complement to the five-member panel. More significantly for employers, and consistent with long-standing precedent, the sitting president of the United States appoints three … Continue reading this entry

NLRB’s New Joint Employment Rules Fail . . . But Live to Fight Another Day

Waivers
No matter your political persuasion, there is little argument that during the second term of the previous administration, multiple federal agencies made landscape-altering changes to federal labor policy. These changes included rewriting guidance on independent contractor standards and accelerating the speed at which union organizing elections would occur following the filing of a representation petition.  … Continue reading this entry

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

FCRA
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

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

Trump
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