Recent Blog Posts
- Tie Goes to the Employer: National Labor Relations Board Overrules Past Precedent Regarding Dual-Marked Ballots The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test. A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation.... More
- NLRB Ends Suspension of Union Representation Elections Amid the ever-increasing impact of the COVID-19 crisis across the country, the National Labor Relations Board (“NLRB” or “Board”) announced on Wednesday that the two-week freeze on representation elections currently in effect would end on April 3, 2020. In the weeks leading up to the nationwide postponement of elections, which included both manual and mail ballot elections, the Board implemented an agency-wide telework policy and announced the closure of several Regional Offices. According to the Board’s website, at least six... More
- NLRB Finalizes Three Amendments to Election Procedures, Continuing Rulemaking Agenda On the heels of guidance regarding when the duty to bargain may be suspended or modified during the COVID-19 pandemic, the National Labor Relations Board (“NLRB” or “Board”) finalized rulemaking today that changes three aspects of the Board’s representation election procedures (“Final Rule”).
The Final Rule overhauls the handling of unfair labor practice charges commonly referred to as “blocking charges” when a petition for an election is pending, revamps the Board’s voluntary recognition bar doctrine, and changes the evidentiary requirements for... More
- NLRB Issues Guidance on When Duty to Bargain May Be Suspended During COVID-19 Pandemic On March 27, 2020, NLRB General Counsel John Ring issued General Counsel Memorandum 20-04, entitled “Case Summaries Pertaining to the Duty to Bargain in Emergency Situations” providing employers with guidance “regarding the rights and obligations of both employers and labor organizations, particularly in light of responsive measures taken to contain the virus,” including both “measures taken out of prudence” as well as and other actions that “have been required by state, local or federal authorities.” Our Act Now Advisory reports... More
- Shhh – CARES Act Hush Money Loans Require Desperate Employers Not to Oppose Unionization In the chaos of a global health pandemic and what some economists are calling the Great Suppression, Americans have shown amazing solidarity in the battle against the coronavirus (“COVID-19”). Nationwide, citizens are social distancing and staying home while businesses are closing their doors and redeploying their resources to meet emergent demands. However, this collective American commitment has come at a steep economic cost. Millions of Americans suddenly find themselves unemployed or unable to work while previously thriving businesses have been... More
- NLRB Postpones All Elections Indefinitely and Seriously Limits Other Agency Operations: The Status of NLRB Operations in the Face of COVID-19 The impact of the novel coronavirus has slammed employers across the globe, and federal agencies such as the National Labor Relations Board (“Board”) are no exception. The Board announced Thursday the unprecedented step that it was suspending all representation elections, including mail ballot elections, for at least two (2) weeks until at least April 3rd.
Just days earlier, the Agency implemented a nationwide telework policy in both its headquarters and regional offices, encouraging employees of the agency to work from home. ... More
- Coronavirus Considerations for Employers with a Unionized Workforce As we have discussed in prior Advisories, the 2019 Novel Coronavirus (“Coronavirus” or “COVID-19”) public health emergency is raising important issues for employers addressing rapidly developing disruptions to the workplace and the lives of employees with mass school closures, workplace closings, the need to reduce staff and expenses, etc. Employers with unionized workforces must take certain additional considerations into account when developing and implementing response plans to the current crisis.
Under the National Labor Relations Act (“NLRA” or “Act”), employers have... More
- Tipping the Scales: New York Reduces the UI Waiting Period for Striking Workers Employers in New York, the second-most unionized state in the country, have lost another key point of leverage in collective bargaining. Effective February 6, 2020, Senate Bill 7310 reduces the amount of time striking workers in the private sector must wait before they are eligible to receive unemployment benefits. While New York is one of only a handful of states to allow strikers to receive unemployment benefits, the seven week waiting period that has applied until now, has served as... More
- New NLRB Rule Defining Joint-Employer Status to Take Effect The National Labor Relations Board has announced the issuance of its final rule governing joint-employer status. The new rule, which was first proposed in September 2018 and has been the subject of extensive public comment, will become effective April 27, 2020.
The critical elements for finding a joint-employer relationship under the new rule is the possession and the exercise of substantial direct and immediate control over the terms and conditions of employment of those employed by another employer. The essence of... More
- NLRB Reverses Position on Confidentiality Concerning Workplace Investigations – Holds That Confidentiality Requirements Are Presumptively Lawful The National Labor Relations Board, in its December 17th decision in Apogee Retail LLC d/b/a Unique Thrift Store, has reversed its prior rule and held that employer requirements that employees treat workplace investigations as confidential are “presumptively lawful.” The Apogee decision overturns the Board’s 2015 Banner Estrella decision, which had required that an employer seeking to impose confidentiality in connection with a workplace investigation was required to prove, on a case by case basis, that the integrity of an investigation would... More