Recent Blog Posts
- Supreme Court Rules That Former NLRB Acting General Counsel Served in Violation of Federal Law On March 21, 2017, the United States Supreme Court ruled that the National Labor Relations Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he continued in that position after President Barack Obama nominated him for a full term as General Counsel.
By a 6 to 2 vote, the Justices affirmed an August 2015 decision by the D.C. Circuit, which found that Solomon improperly served as... More
- D.C. Circuit Rejects NLRB Finding That FedEx Drivers Are Employees, Not Independent Contractors and Raises Doubts as to Board’s Joint Employer Test Over the past week the U.S. Court of Appeals for the District of Columbia Circuit weighed in on two separate related efforts by the Obama-Board to expand the protections of the National Labor Relations Act (the “Act”) to workers who are not in traditional employer-employee relationships.
One Court – Two Cases
In a March 3, 2017 decision, the Court rejected the National Labor Relations Board’s (“NLRB”) finding that FedEx Home Delivery drivers were employees and agreed with the company that the... More
- “A Day Without” Actions – How Can Employers Prepare? On February 16, 2017, tens of thousands of individuals across the country stayed home from work as part of the “Day Without Immigrants,” a social activism campaign organized in response to President Donald Trump’s recent executive orders concerning immigration and increased enforcement, deportation actions, and raids by Immigration and Customs Enforcement. The “Day Without Immigrants” action was apparently not coordinated by any centralized organization, but was promoted on social media and by word-of-mouth just days before.
Now, the same groups that... More
- NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards
NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices.
The Acting Chair’s Position On the Board’s 2014 Amended... More
- What’s Really in The NLRB’s New Amendments to Its Rules And Regulations and What Do These Changes Mean For Employers? On February 23, 2017 the National Labor Relations Board (“Board” or “NLRB”) made public a proposed Final Rule to revise its Rules and Regulations “ (the “Rules”) to reflect modern technology, such as E-Filing, and eliminate references to telegraphs, carbon copies, and the requirements for hard copy submissions and multiple copies, and to eliminate legalistic terms” from the Rules.
Because the Board contends these amendments to its Rules as “procedural rather than substantive,” it has taken the position that it is... More
- Labor Department Backs Away from Permitting Unions at OSHA Safety Inspections As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers. We asked at the time whether the Trump Administration would continue to defend that change in policy. This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop... More
- F17 and the General Strike Movement – Best Practices for Addressing Political Activity in the Workplace This week, an activist group calling itself “Strike4Democracy” has called for a day of “coordinated national actions” – purportedly including more than 100 “strike actions” across the country – on February 17, 2017. The group envisions the February 17th strike as the first in “a series of mass strikes,” including planned mass strikes on March 8 (organized by International Women’s Day and The Women’s March) and May Day, and a general “heightening resistance throughout the summer.” The organizers are encouraging... More
- Court Refuses to Dismiss Challenge to OSHA Practice Allowing Unions to Accompany OSHA Workplace Investigations A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.
The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation Letter (the... More
- President Trump Appoints Philip A. Miscimarra Acting Chair of National Labor Relations Board – The Beginning of the End of the “Obama Board” By appointing Philip Miscimarra, who has served as a Member of the National Labor Relations Board (“NLRB” or “Board”) since August 2013, to serve as Acting Chair of the agency, President Donald Trump has taken the first step in what will undoubtedly be an ongoing process to change the National Labor Relations Board. Chairman Miscimarra is the only Republican currently serving on the Board. Mark Gaston Pearce, who has served as chairman, a Democrat who has served as chairman since... More
- Permanent Injunction Issued Holding DOL Amended Persuader Rule Unlawful In a two page Order issued yesterday, Senior District Court Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas ruled that the Department of Labor’s (“DOL”) controversial new Persuader Rule issued in March 2016, and its new Advice Exemption Interpretation, are “unlawful,” and Judge Cummings made permanent his earlier June 27th Preliminary Injunction Order.
The Rule and Interpretation, which now appear to be permanently struck down, would have imposed dramatic changes in longstanding precedents, by... More