ABA Seeks to Combat Discrimination, But Clients May Hold the Keys to Progress

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We normally devote our small corner of the internet to updating you on the latest developments with the goal of helping employers do the right thing, most often from a legal compliance standpoint, but occasionally from a broader social perspective. In short, we are here to help you.

From time to time, we look to our clients when determining how to do the right thing as well. For the business of the practice of law is nevertheless a business, and our profession faces the same social challenges all businesses do. Yet we have an additional wrinkle – ethical obligations to advocate for our clients. A tension brews in this space, and if it ever bubbles up, we as attorneys may need you to point us in the right direction. Continue reading this entry

What Past Practice?? NLRB Overhauls Back Pay Formula

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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 of what seems like a thinly veiled agenda to benefit unions in their organizing efforts. Some of these actions have included upsetting decades of consistent precedent in ways that clearly favor unions. This time, the NLRB has departed from practices it has followed since the passage of the NLRA way back in 1935. Continue reading this entry

Got Arbitration Agreements With Class Waivers? The Fight May Not Be Over

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Since the United States Supreme Court upheld the validity of class action waivers in commercial consumer arbitration agreements several years ago, many employers have found arbitration agreements with class action waivers a valuable tool to protect against the tide of class action litigation. In addition to avoiding the risk of a runaway jury award, these agreements force aggrieved individuals to arbitrate their claims one by one, instead of permitting a costly, drawn out class action. Many courts have upheld such arrangements against legal challenge, but it appears this tide could be turning. Continue reading this entry

Employer Handbook Policies Violate the National Labor Relations Act

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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

Department of Labor Appeals "Persuader Rule" Order

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As employers may be aware, on March 24, 2016, the Office of Labor-Management Services (OLMS), an agency in the federal Department of Labor (DOL), issued a new interpretation of the so-called “Persuader Rule” that would have imposed significantly expanded reporting obligations on employers, consultants, and attorneys during union organizing and similar activities.  OLMS “reinterpreted” its long-standing position (in place for over half a century) that reportable persuader activity only occurred when there was direct contact between the consultant and the target employees.  Now, according to the new Rule, reportable persuader activities would occur in a whole range of activities, the parameters of which were frequently unclear and ill-defined. Continue reading this entry