Recent Blog Posts
- 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
- NLRB Issues Proposed Rule to Scale Back 2014 Expedited Election Rules The National Labor Relations Board (“Board” or “NLRB”) has announced that it is publishing proposed changes to its Rules and Regulations that will begin to reverse the Board’s 2014 changes, which took effect in 2015, to its representation election rules and procedures commonly referred to as the “ambush election rules.” The proposed final rule is expected to be published in the Federal Register on December 18, 2019 and to become effective 120 days after publication.
Board Chairman John F. Ring described... More
- NLRB’s General Counsel Signals Major Shift in Neutrality Agreement Between Employers and Unions Seeking to Organize Their Employees The General Counsel for the National Labor Relations Board (“Board” or “NLRB”) has signaled what may be a major resetting of the law on the Board’s position concerning the legality of so called neutrality agreements, in which employers make concessions and accommodations to labor unions seeking to organize and represent their employees. This occurred with the General Counsel’s consideration of an appeal by the National Right to Work Legal Defense Foundation, Inc. (the “Fund”) of a dismissal of an unfair... More
- NLRB Adds New Three-Part Test to Standard for Evaluating Appropriateness of Bargaining Units One of the matters of significance to employers and unions under the National Labor Relations Act that became a point of contention under the National Labor Relations Board (“NLRB” or “Board”) during the Obama Administration was the movement to allow representation elections in what were commonly referred to as “micro-units,” which many believed made it easier for unions to score victories and gain bargaining rights. The Board’s recent decision in Boeing Co. and International Association of Machinists and Aerospace Workers... More
- NLRB Announces Plans for Further Rulemaking: Election Rules, Union Access to Employer Property, Question of Whether Student Athletes on Scholarship Are Employees, and More The rulemaking priorities of the National Labor Relations Board (“NLRB” or “Board”) have been released, signaling what Board Chairman John F. Ring described as “the Board majority’s strong interest in continued rulemaking.” The announcement was contained in the Unified Agenda of Federal Regulatory and Deregulatory Actions, published by the Office of Management and Budget’s Office of Information and Regulatory Affairs.
Issues Identified by the Board for Further Rulemaking
The Board majority has identified the following as areas in which it intends... More
- NLRB General Counsel Concludes That Drivers Using the Uber App Are Independent Contractors, Not Employees The Division of Advice of the National Labor Relations Board (“NLRB” or “Board”), in an Advice Memorandum, dated April 16, 2019 (“Advice Memo”), has concluded that “drivers providing personal transportation services” using Uber Technologies Inc.’s “app-based ride-share platforms” were independent contractors and not employees, as the drivers had alleged in a series of unfair labor practice charges filed in 2014, 2015, and 2016. Based on the Division of Advice’s analysis of the relationship between Uber and the drivers, the General... More
- DOL Endorses Independent Contractor Status in the Gig Economy On April 29, 2019, the U.S. Department of Labor (“DOL”) issued an opinion letter concluding that workers providing services to customers referred to them through an unidentified virtual marketplace are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”).
Although the opinion letter is not “binding” authority, the DOL’s guidance should provide support to gig economy businesses defending against claims of independent contractor misclassification under the FLSA. The opinion letter may also be of value to businesses facing... More
- DOL Joins NLRB in Proposing a New Rule to Determine Joint Employer Status – DOL Rule Would Apply to FLSA My colleagues Adriana S. Kosovych, Jeffrey H. Ruzal, and I have posted on Epstein Becker & Green, P.C.’s Hospitality Labor and Employment Law blog concerning the U.S. Department of Labor’s Proposed New Rule to Determine Joint Employer Status under the Fair Labor Standards Act. In its proposed new rule, the DOL notes that the National Labor Relations Board is also engaged in rulemaking to set new standards for determining joint employer status under the National Labor Relations Act. Our blog... More
- NLRB Replaces Its Test for Distinguishing Between Employees and Independent Contractors – Returns to Pre-2014 Common Law Based Test In a three to one decision issued on January 25, 2019, the National Labor Relations Board (“NLRB” or the “Board”) in SuperShuttle DFW, Inc., 367 NLRB No.75 (2019), the Board announced it was rejecting the test adopted in 2014 in FedEx Home Delivery, 361 NLRB 610 (2014) for determining whether a worker was an employee or an independent contractor and returning to the test it used prior to the FedEx Home decision.
As the decision in SuperShuttle makes clear, the determination... More
- 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