Tag Archives: National Labor Relations Act

Notwithstanding Trump’s Efforts to Narrow Joint Employment Liability, Businesses Need to Remain Vigilant When Using “Independent Contractors”

Independent
As we have focused on in this week’s articles, it is no secret that the current administration is pushing much more pro-business policies compared to the Obama administration. For example, as we previously wrote about, federal agencies under Trump’s administration have taken steps and issued guidance aimed at narrowing the circumstances under which a business … Continue reading this entry

Labor Board Moves to Clear the Confusion on Joint Employment

Independent
On Friday, September 14, 2018, the National Labor Relations Board (NLRB) issued its Notice of Proposed Rulemaking in the latest attempt to address the “joint employer” standard under the National Labor Relations Act. The proposed rule states that a separate entity will be considered a joint employer “only if the two employers share or codetermine … Continue reading this entry

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

handbook
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

Independent
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

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

Labor
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

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

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

OSHA Update—New Guidance on Settlement Agreements in Whistleblower Cases

The Occupational Safety and Health Administration (“OSHA”) recently issued new guidelines for the approval of settlement agreements between employers and employees during whistleblower cases. These guidelines will replace Chapter 6, paragraphs XII.E.2 and 3, of the OSHA Whistleblower Investigation Manual, the current version of which was published on January 28, 2016.   The new guidelines will … 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

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

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 … Continue reading this entry

Legal Considerations for Employers during Election Years—Part III

With the Presidential election heating up, employers may see an increasing interest in politics among their employees.  As we have covered recently in the Work Knowledge Blog, private employers are not bound by the First Amendment’s right to free speech.  But employees do have certain limited rights in the workplace relevant in election years, including … 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

Top Five Best Practices for Workplace Investigations

EEOC
A well-conducted investigation can reduce workplace conflict, promote job satisfaction and inclusion, and can also help shield you from legal liability. However, the converse is also true — a botched investigation can have enormous implications, both from a business and legal perspective. Fortunately, there are a number of simple steps you can take to ensure … 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

D.C. Circuit Releases Employer From NLRB Jail

FEHC
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

Someone’s Knocking: If It’s the Union, Don’t Let Them in

The National Labor Relations Act protects employee solicitation of other employees and distribution of literature to form or join a union or to engage in other “concerted” activities. However, employers have the ability to regulate such solicitation and distribution in the workplace under certain circumstances. In general, employers can permissibly have policies that prohibit the following:… 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

NLRB Gives Unions Another Prize: Non-Tenure-Eligible Faculty at Private Religious Colleges and Universities

Private colleges and universities are the latest to feel the effects of the more union-friendly National Labor Relations Board (NLRB). In a recent ruling, the Board concluded in unprecedented fashion that it has jurisdiction under the National Labor Relations Act over non-tenure-eligible faculty at private religious institutions who are not performing a specific religious function, … Continue reading this entry

NLRB Deems Employer Unlawfully Distributes a Workplace Violence Memo After Union Organizing Activity

Your intentions may be pure, but your actions during or after union organizing activity could lead to your company running afoul of the National Labor Relations Act (the Act) according to the National Labor Relations Board (NLRB). The NLRB has recently emphasized this message in yet another 2-1 decision ruling that a nursing home employer’s … Continue reading this entry