Tag Archives: NLRB

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

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

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

Purple Haze Remains Over Employees' Personal Rights on Employer Email Networks

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More than a year after the National Labor Relations Board’s (NLRB) momentous Purple Communications, Inc. decision, determining that employers must allow off-duty employees to use the company email system to engage in activities like union organizing, we reflect on the continued haze and lack of clarity in this critical area.  The sharply divided 3-2 decision, … Continue reading this entry

Employers Should Take Care When Prohibiting Workplace Recordings

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A number of years ago, one of the nation’s largest grocery stores banned its employees from recording workplace conversations, images, or meetings without prior management approval or consent by all parties to a conversation. Sounds reasonable, right? Not to the NLRB, which recently ruled that the employer’s recording restrictions violate the National Labor Relations Act. … 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

The Lessons (and Wisdom) of Rihanna

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Everyone these days seems to think they are entitled to more money, from the United States Department of Labor (DOL) claiming that there really are no independent contractors to the thousands of United Automobile Workers (UAW) members who recently rejected a tentative agreement with Fiat Chrysler Automobiles because union membership claimed the agreement did not … Continue reading this entry

How the NLRB Spent Its Summer — Could Be a Chilly Autumn

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For those of us in the employment field attempting to recover from the languor of long summer days, it’s time to catch up and ask what the NLRB has been up to during the dog days.  The answer – a lot. And so we take this opportunity to recap what has been a busy time during … 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

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

The Long Reach of the National Labor Relations Act

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Non-union employers are often under the misimpression that they are not affected by the National Labor Relations Act (NLRA) — the federal statute governing union-related issues in the private sector. A recent court decision stands as yet another reminder that this is not the case, and that non-union employers can still run afoul of the … 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

“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