Earlier this month, the General Counsel of the National Labor Relations Board issued a memo instructing regional agency officials on how to assess workplace rules in light of the new standard established by the National Labor Relations Board (NLRB) in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). Together, the Boeing decision and the General Counsel’s memo shift the presumption regarding facially neutral workplace rules back in favor of the employer.
In this 20-minute podcast, Hank Sledz and Lauren Novak discuss Congress’ push to allow private companies to offer comp time in lieu of paying time-and-a-half for overtime under the Working Families Flexibility Act, how employer-friendly the National Labor Relations Board (NLRB) and Department of Labor will be under new leadership, and other important changes during the Trump Administration’s first 100 days that could hurt or help employers.
(Also, tune in to find out if Hank and Lauren’s labor and employment predictions about the new administration from last December were right.)
You can listen to the podcast here.
Another federal court of appeals has weighed in on the question of whether requiring employees to waive the right to bring a class action against their employer in arbitration or court as a condition of employment violates employees’ rights under Section 7 of the National Labor Relations Act (NLRA). Continue Reading Is the Tide Turning Against Class Action Waivers in Arbitration Agreements?
The current National Labor Relations Board (NLRB or Board) has done it again, once more overturning existing precedent. In a decision issued July 11, 2016, the Board abandoned its 2004 Oakwood Care Center decision (343 NLRB 659) which stood for the proposition that a unit comprising the employees of a “supplier” employer (such as a leasing or temporary agency) and those of a “user” employer was not an appropriate unit for collective bargaining purposes, absent the consent of both employers. Miller & Anderson, Inc. and Tradesman International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, 364 NLRB No. 39. Continue Reading Temporary Employees—Or Long-Term Bargaining Obligation?
In a decision that creates a split with the 5th Circuit Court of Appeals, the 7th Circuit on May 26, 2016 adopted the National Labor Relations Board’s D.R. Horton rationale and held that a condition of employment requiring employees to waive the right to bring class or collective actions either in arbitration or in judicial forums runs afoul of Section 7 of the National Labor Relations Act, and is unenforceable as illegal. Lewis v. Epic Systems Corporation, No.15-2997 (7th Cir. 2016). Continue Reading 7th Circuit Holds Mandatory Waiver of Class Claims Unlawful; Creates Circuit Court Split
Part 2 of a 3-Part Series
When considering the potential bill of sale on arbitration, employers that once considered arbitration may sing a different tune. In Part 1 of our 3-part series on mandatory arbitration, we pointed out that, contrary to legal lore, arbitration often proves just as inefficient as litigation against a principle-driven plaintiff in court without the promised cost and time savings. In addition, the defense bar did not anticipate the cost of defending a class action waiver (seen as a key benefit to mandatory arbitration) before the NLRB. Continue Reading More Money, More Problems: Class Action Waivers in Mandatory Arbitration Hit Roadblocks from the NLRB
The National Labor Relations Board’s (NLRB) long-anticipated decision in Browning-Ferris Industries, 362 NLRB No.186, will dramatically impact business for companies ranging from leased employee staffing arrangements to franchisor-franchisee models.
The August 27, 2015 decision just turned 30 years of established precedent on its head. Since the mid-1980’s, the NLRB has followed a standard finding an entity to be a joint employer of another entity’s employees only if it had significant control over the employment terms of those employees, such as the right to hire, fire, discipline, supervise or direct the day-to-day methods by which employees completed their job duties. Continue Reading Franchisor and Franchisee: Two Peas In A Pod (But What Will The NLRB’s Ruling Really Produce?)
On June 26, 2015, the National Labor Relations (NLRB) Board issued two decisions which significantly impact the confidentiality of employer investigations into employee misconduct.
In the first case, Banner Health Systems, 362 NLRB No. 137, a 2-1 Board majority reaffirmed an earlier decision which had been vacated by the D.C. Circuit Court of Appeals since the Board lacked a proper quorum based upon the Supreme Court’s Noel Canning decision. Continue Reading NLRB Rulings Impact Confidentiality of Employer Investigations
Amendments to the National Labor Relations Board’s (NLRB) election rules went into effect on April 14, 2015. The new rules have already had a major impact on the timing of and procedures for union elections.
The history leading up to the adoption of these amendments was discussed in Schiff Hardin’s February 7, 2014 and December 15, 2014 Labor & Employment Alerts. As noted in those alerts, the practical effect of these amendments will be to shorten the time between the filing of a petition for an election and the actual election, thus giving employers less time to communicate with their employees about issues relating to unionization. As we predicted, the time between the filing of a petition and the actual election has decreased significantly. According to statistics recently released by the NLRB, since the rules took effect, the average time between the petition and the election was about 23 days. Prior to the new rules, the average time between petition and election was 38 days. Thus, as a result of the new rules, the employer’s time to communicate with its employees prior to the election has been shortened, on average, by about 2 weeks. Continue Reading Effects of NLRB’s Adoption of “Quickie Election” Rules
Yesterday, the National Labor Relations Board, by a 3-2 majority, reversed its 2007 decision in Register Guard, 351 NLRB 1110, which had held that employees had no statutory right to use their employer’s email systems for communications protected by Section 7 of the National Labor Relations Act. Purple Communications, Inc. and Communications Workers of America, AFL-CIO, 361 NLRB No. 126. Examples of protected communications would include discussions among employees about unionization as well as discussions about the employees’ wage, benefits or other terms and conditions of employment. This decision will have a major impact on employers’ email policies, regardless of whether such employer is unionized or union-free. Continue Reading NLRB’s Reversal of Register Guard Will Have Significant Impact on Employers’ Email Policies