Tag Archives: National Labor Relations Board

Trump’s SCOTUS Nomination May Impact Employee Class Waiver Agreements

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President Trump is not wasting any time acting on several of his campaign promises. Whether or not the administration’s actions align with those campaign promises, however, is yet to be seen.… Continue reading this entry

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

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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

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 … 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 … Continue reading this entry

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

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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

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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?

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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

Joint Employer Standard Causing Jurisdictional Headaches

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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

DOL Asserts “As Broad as Possible” Joint Employer Standard for Wage and Hour Enforcement

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In new guidance issued on January 20, the Department of Labor (DOL) has aggressively interpreted its authority “as broad as possible” to hold employers responsible for wage and hour violations committed by separate “joint employers.” This guidance, issued by David Weil, the administrator of DOL’s Wage and Hour Division, makes clear those businesses sharing employees … Continue reading this entry

Decoding the NLRB’s New Joint Employer Standard

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The National Labor Relations Board (NLRB) made major changes to the concept of joint employers in 2015, culminating in what many felt was a head spinning decision in August, known as Browning-Ferris, setting a new standard for determining if two entities are joint employers. That NLRB decision stepped beyond a review of one business’s actual exercise of … Continue reading this entry

NLRB Hands Employers a Win (Seriously!): GPS Tracking of Employee Upheld

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It is no surprise that the National Labor Relations Board (NLRB) has been busy this summer establishing several principles that are frightening to employers. But in an unexpected turn of events, the NLRB Office of the General Counsel, Division of Advice, recently handed management a win. The Board held that installation of a GPS tracking … Continue reading this entry

A Quick Update on Speedy Election Rules (Hint: The Predictions Have Come True — Somewhat)

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The National Labor Relation Board’s new election procedures became effective April 14, 2015. You may recall that the new rules were largely designed to shorten significantly the time between a union’s filing of a petition for election and the voting. Businesses cried foul, worried that a shorter time period between the petition filing and the election … Continue reading this entry

Be Careful What You Say During a Union Organizing Campaign

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At the same time that the current National Labor Relations Board is giving employees what seems like the unfettered ability to engage in disparagement, profane outbursts, and racist comments that accompany protected union or other concerted activity, employers are having to become ever more careful about what they say. Even truthful and seemingly innocuous statements made … Continue reading this entry

NLRB’s New Joint Employer Standard Creates Enormous Uncertainty

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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

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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

Labor Board Hounded by Another Appointment Controversy

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For much of the Obama Administration, the National Labor Relations Board (Board) has been operating as, at least from the perspective of some, a rogue agency (and not just because of its willingness to overturn precedent to expand union and employees’ rights). With just two of the required five members for the first two years of … Continue reading this entry

D.C. Circuit Releases Employer From NLRB Jail

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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?

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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)

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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

Joint Employer Status for Franchisors Sees Some Reprieve, but not Enough yet for Celebration

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We noted last year that, at the behest of its General Counsel Richard Griffin, the National Labor Relations Board was looking to recast the joint employer test under the National Labor Relations Act (NLRA) within the franchise model of business, and make corporate franchisors potentially responsible for alleged unfair labor practices committed by their franchisees. This … Continue reading this entry

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

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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

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

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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

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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