Recent Blog Posts
- NLRB Proposed Rule Will Redefine Joint-Employer Status –Rule Will Overrule Browning-Ferris and Require “Direct and Immediate Control” The National Labor Relations Board has announced publication of a proposed rule that will establish a new and far narrower standard for determining whether an employer can be held to be the joint-employer of another employer’s employees. The rule described in the Notice of Proposed Rulemaking published in the Federal Register on September 14, 2018, will, once effective essentially discard the Board’s test adopted in Browning-Ferris Industries (“Browning-Ferris”) during the Obama Administration, which substantially reduced the burden to establish that separate employers... More
- NLRB Implements Changes to Case Processing – Announces Early Retirement and Voluntary Separation Programs for Professional Staff Since earlier this year, reports have circulated that National Labor Relations Board (“NLRB” or “Board”) General Counsel Peter Robb planned to introduce changes in its case handling processes and organizational structure that would move certain authority away from the Regional Directors and transfer substantive decision making authority to Washington. While the General Counsel denied the specifics, he acknowledged that as the Board was faced with a reduced case load and budgetary pressures, some changes would be necessary and appropriate. It now... More
- New York City Temporary Schedule Change Law Impact Employers with Collective Bargaining Agreements – Express Waiver and “Comparable Benefits” Language Will Need To Be Negotiated For Contracts Covering Persons Employed In New York City The New York City Temporary Schedule Change Law (“Law”), which became effective on July 18, 2018, raises new issues that employers with union represented employees will need to address as their existing collective bargaining agreements (“CBA”) come up for renewal.
The Law allows most New York City employees up to two temporary schedule changes (or permission to take unpaid time off) per calendar year when such changes are needed due to a “personal event.” The Law also prohibits retaliation against workers... More
- DOL Rescinds 2016 Persuader Rule – Returns to Long Standing Definition of “Advice Exemption” One of the more controversial actions of the United States Department of Labor during the Obama Administration was its 2016 issuance of a Final Rule that was intended to radically rewrite the rules concerning the “Advice Exemption” to Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”). The 2016 Final Rule was hotly contested because it would have required employers and their labor law counsel to report concerning advice the lawyers provided even when the lawyers did not directly communicate with... More
- Supreme Court Holds Requiring Public Sector Employees to Pay Representation Fees Is Unconstitutional – Violates Government Employees’ First Amendment Rights In its long awaited decision in Mark Janus v. American Federation of State, County and Municipal Employees, the United States Supreme Court clearly and unequivocally held that it is a violation of public employees’ First Amendment rights to require that they pay an “agency fee” to the union that is their collective bargaining representative, to cover their “fair share” of their union representative’s bargaining and contract enforcement expenses. The Janus decision overturns the Court’s own 1977 decision in Abood v. Detroit... More
- NLRB GC Issues Memo on Workplace Policies – Employment Law This Week Featured on Employment Law This Week: General Counsel Peter Robb has issued a memo to National Labor Relations Board regional directors that offers guidance in applying the Board’s Boeing decision when considering the legality of rules.
Robb instructs the regional offices to refer cases when there is uncertainty to the Board’s Division of Advice for direction. The General Counsel memo that was issued at the beginning of June provides very specific guidance regarding the placement of work rules into each of the three... More
- 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