Recent Blog Posts
- Supreme Court Gives Employers “Epic” Win: Upholding Class Action Waivers in Arbitration Agreements and Rejecting Obama NLRB In Epic Systems Corp. v. Lewis (a companion case to NLRB v. Murphy Oil USA and Ernst & Young v. Morris), the U.S. Supreme Court finally and decisively put to rest the Obama-era NLRB’s aggressive contention that the National Labor Relations Act (NLRA) prevented class action waiver in employees arbitration agreements, finding such waivers are both protected by the Federal Arbitration Act (FAA) and not prohibited by the NLRA. In its 5-4 decision, the Court explained that the NLRB’s interpretation... More
- Senate Confirms John Ring to Restore Full Five-Member Board On Wednesday, the Senate narrowly confirmed John Ring, a management-side labor attorney from Morgan Lewis & Bockius LLP, to the National Labor Relations Board (“NLRB” or the “Board”). With this vote, Ring fills the last remaining open seat on the Board, which was previously held by former Chairman Philip Miscimarra. Ring’s term will expire on December 16, 2022. The confirmation vote of 50-48 was largely down party lines, with only two Democrats voting in favor of Ring’s confirmation. The strong... More
- Browning-Ferris Test Holds in Hy-Brand – Employment Law This Week Featured on Employment Law This Week: NLRB Vacates Hy-Brand Joint-Employer Decision
The NLRB’s Browning-Ferris test is once again the law of the land — A 3-member panel has reversed the Board’s December Hy-Brand decision, which had nixed the Browning-Ferris joint-employer test, and returned to a “direct control” standard. The reversal comes after an inspector general report that found that Member William Emanuel should have recused himself. The Browing-Ferris test considers a company a “joint-employer” if it has the right to exercise... More
- NLRB Reinstates Browning-Ferris Joint-Employer Standard . . . For Now On February 26, 2018, in a unanimous decision by Chairman Marvin Kaplan and Members Mark Pearce and Lauren McFerren, the National Labor Relations Board (“NLRB” or the “Board”) reversed and vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd. (“Hy-Brand”), which had overruled the joint-employer standard set forth in the 2015 Browning-Ferris Industries (“Browning-Ferris”) decision. The decision followed the release of a finding that a potential conflict-of-interest had tainted the Board’s 3-2 vote. What this means, at least for the... More
- NLRB Invites Comments on Employee Misclassification – Employment Law This Week Featured on Employment Law This Week: Should the misclassification of an employee as an independent contractor be found to violate the NLRA?
The National Labor Relations Board is seeking amicus briefs on whether the misclassification of an employee as an independent contractor should be found to violate the National Labor Relations Act. Former NLRB general counsel Richard Griffin argued that misclassification violates the NLRA because it impacts the rights that employees have under the Act, including the right to engage in concerted activities... More
- The Supreme Court Holds That Federal Courts Must Interpret Collective Bargaining Agreements in Accordance with “Ordinary Contract Principles;” Rejects So-Called “Yard-Man” Inferences Resolving a split between circuits, this week the United States Supreme Court, in CNH Industrial v. Reese rejected what has come to be known as the Yard-Man standard, and reaffirmed that collective bargaining agreements must be interpreted according ordinary contract principles. Although the Supreme Court has long held ordinary cannons of contract construction apply to collective bargaining agreements, some federal courts developed a specialized set of inferences, known as the Yard-Man inferences, which allowed them to read beyond the actual contract... More
- Organizational Changes at the NLRB – Employment Law This Week Featured on Employment Law This Week: General Counsel Peter Robb could be signaling a shift at the NLRB.
Robb has reportedly suggested structural changes that could establish a new layer of management between the General Counsel and the field. These reports come as the NLRB seeks to adjust to cuts to its budget and a decline in case filings. If implemented, the changes could remove authority from the Regional Directors and shift more decision-making to the GC. Sources report that some changes... More
- Take 5 Newsletter: 2017 Was a Year of Change at the NLRB – but 2018 Promises Even Greater Changes In the months following Donald Trump’s inauguration, those interested in the National Labor Relations Board (“NLRB” or “Board”) waited anxiously for the new President to fill key positions that would allow the Board to reconsider many of the actions of the past eight years. Over the last six months, the Board has begun to revisit, and overrule, several union-friendly and pro-employee Obama-era Board decisions. The Board’s new General Counsel has also given clear guidance as to where else employers can... More
- Is the NLRB’s General Counsel Planning to “Reorganize” the Labor Board’s Regional Directors and Field Offices? Over the past several weeks there have been conflicting reports concerning what The New York Times described as “a proposal” by Peter Robb, who was sworn in as the National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel on November 17, 2017, to “demote” the Board’s Regional Directors and career “senior civil servants who resolve most labor cases,” and transfer their decision making authority to “a small cadre of officials installed above them in the National Labor Relations Board’s hierarchy,” apparently answerable... More
- President to Nominate Management Labor Lawyer John Ring to NLRB The White House has announced that John Ring, co-chair of the Labor & Employment Law practice at a management side law firm, is the President’s choice for the vacancy on the National Labor Relations Board created last month when Board Chairman Phillip Miscimarra completed his term on December 16, 2017. Mr. Ring’s nomination to the Board is subject to Senate confirmation. No date has been set for hearings on the nomination.
The Board is Now Split 2-2
Since Mr. Miscimarra’s departure... More