Workforce Bulletin

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 post discusses the similarities and differences between the two proposed rules.

In the first meaningful revision of its joint employer regulations in over 60 years, on Monday, April 1, 2019 the Department of Labor ("DOL") proposed a new rule establishing a four-part test to determine whether a person or company will be deemed to be the joint employer of persons employed by another employer. Joint employer status confers joint and several liability with the primary employer and any other joint employers for all wages due to the employee under the Fair Labor Standards Act ("FLSA"), and it’s often a point of dispute when an employee lodges claims for unpaid wages or ...

Last week, the National Labor Relations Board (the “Board”) issued a decision that “begins the process of restoring” a decades-old definition of “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”) – a definition that, in the Board’s view, had become muddled and unduly expanded as recent decisions “blurred the distinction between protected group action and unprotected individual action.”

In a 3-1 decision, with Member McFerran dissenting, the Board in Alstate Maintenance, LLC upheld an administrative ...

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 of whether a worker is an employee entitled to the protections of the National Labor Relations Act (the ...

In May, the U.S. Supreme Court ruled in Epic Systems Corp. v. Lewis that employers may lawfully require employees to sign arbitration agreements that include a waiver of the right to participate in an employee class action lawsuit or arbitration. Below, we discuss the significance of this decision and highlight issues that employers may wish to consider in the wake of it.

Epic Systems—a Pivotal Win for Employers

The NLRB planted the seed for Epic Systems in 2012, when it first took the position that Section 7 of the National Labor relations Act (“NLRA”)—which affords employees ...

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 ...

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 appears safe to ...

More than 7 months after hearing oral argument on an issue that will affect countless employers across the country – whether employers may implement arbitration agreements with class action waivers -- the United States Supreme Court has issued what is bound to be considered a landmark decision in Epic Systems Corp. v. Lewis (a companion case to National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v. Morris), approving the use of such agreements.

The decision will certainly have a tremendous impact upon pending wage-hour class and collective actions, many of which ...

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 of the FAA was not entitled to deference because it is not the agency charged by Congress ...

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 opposition from the Democrats is likely due to the perceived efforts of the ...

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 ...

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 expect to see his office pursue further changes in how the National ...

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 from the Board, where he was part of a 3-2 Republican majority following the confirmation of Marvin ...

In footnotes to two recent unpublished NLRB decisions,  NLRB Chairman Marvin Kaplan, who was named to that role by the President following the December 16, 2017 conclusion of Philip Miscimarra’s term, and Member William Emanuel offered interested observers an indication of two additional areas of Board law that they believe warrant reconsideration once Mr. Miscimarra’s replacement is nominated and confirmed, and the Board returns to a 3-2 Republican majority.

While unpublished Board decisions “are not intended or appropriate for publication and are not binding ...

Last Friday – the day the Star Wars movie Episode VIII hit theaters and the last working day of National Labor Relations Board Chairman Philip A. Miscimarra’s term – the Board continued its efforts to undo some of the most controversial and problematic decisions rendered by the Obama Board before the Republicans temporarily lose their majority.  As we previously reported, recent days have seen a stream of significant decisions and other actions from the National Labor Relations Board.  Most notably, the Board discarded the much criticized indirect control test for determining ...

It should come as no surprise that recent days have seen a stream of significant decisions and other actions from the National Labor Relations Board as Board Chairman Philip A. Miscimarra’s term moves towards its December 16, 2017 conclusion and as a new majority has recently taken shape with the confirmation of Members Marvin Kaplan and William Emanuel.  Chairman Miscimarra, while he was in a minority of Republican appointees from his confirmation during July 2013 until last month, has clearly and consistently explained why he disagreed with the standard adopted ...

Peter B. Robb, the newly sworn in General Counsel of the National Labor Relations Board has issued a memorandum, Mandatory Submissions to Advice, GC Memo 18-02 (the “Mandatory Submissions Memo”), that offers clear information as to how he is likely to proceed in setting the agenda and priorities for the Office of the General Counsel which is “responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.” As we have previously noted, such Mandatory Submission memos offer a ...

The Senate has confirmed Peter B. Robb as the next General Counsel of the National Labor Relations Board (“NLRB” or “Board”).  Mr. Robb, a management side labor lawyer perhaps best known for his representation of the FAA during the 1981 air traffic controllers’ strike, will succeed Richard Griffith, Jr., who was appointed to his four year term by President Barrack Obama in 2013.

Although Mr. Griffin’s term concluded on October 31^st, and the Senate sent Mr. Robb’s confirmation to the President for his signature, to date President Trump has not signed off, with the result ...

In what may be a harbinger of good things to come, the NLRB recently reversed an Administrative Law Judge’s (“ALJ”) finding that Macy’s, Inc.’s confidentiality policies unlawfully interfered with employees’ Section 7 rights.  Unlike many employer policy decisions issued by the Board in recent years, this case does not break new ground or saddle employers with new, unrealistic onuses.  It merely reinforces well-established rules regarding the use of sensitive customer information obtained from an employer’s records and actually reaffirms the right of ...

In Midwest Division-MMC, LLC, d/b/a/ Menorah Medical Center v. NLRB, the D.C. Circuit rejected the Board’s unprecedented application of Weingarten rights to voluntary meetings, by reversing the Board's Decision that would have extended the right of employees to have union representation at meetings at which the employees’ attendance is not compelled.

Kansas state law requires hospitals to establish an internal mechanism to monitor the standard of care provided by nursing professionals.  Pursuant to this law, Menorah Medical Center (“Menorah” or ...

The DC Circuit Court, in its August 11th decision in Rhino Northwest, LLC v NLRB has found that the NLRB’s 2011 Specialty Healthcare decision revisiting the Board’s standards for determining whether a bargaining unit a union seeks to represent is appropriate, where the employer claims in excludes other classifications of employees who share a community of interest with the petitioned for employees, is supported by the National Labor Relations Act and that the “overwhelming community of interest” standard that the Board adopted in that case is entitled to deference and ...

When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

• Immigration
• Global Executive Compensation
• Artificial Intelligence
• Internal Cyber Threats
• Pay Equity
• People Analytics in Hiring
• Gig Economy
• Wage and Hour
• Paid and Unpaid Leave
• Trade Secret Misappropriation
• Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off ...

When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

• Immigration
• Global Executive Compensation
• Artificial Intelligence
• Internal Cyber Threats
• Pay Equity
• People Analytics in Hiring
• Gig Economy
• Wage and Hour
• Paid and Unpaid Leave
• Trade Secret Misappropriation
• Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off ...

When:  Thursday, September 14, 2017    8:00 a.m. – 4:30 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

• Immigration
• Global Executive Compensation
• Artificial Intelligence
• Internal Cyber Threats
• Pay Equity
• People Analytics in Hiring
• Gig Economy
• Wage and Hour
• Paid and Unpaid Leave
• Trade Secret Misappropriation
• Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off ...

On Wednesday, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission lawyer, to fill one of the two open seats on the National Labor Relations Board, moving the agency a step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the GOP-controlled Senate.

The Senate has yet to schedule a vote for President Trump’s second nominee for the Board, William Emanuel, a long time management-side labor and employment lawyer. The Senate is expected to vote for cloture on Emanuel’s nomination after the August recess ...

Since the National Labor Relations Board’s (“NLRB” or the “Board”) 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186, in which it adopted a new, far less stringent test for determining joint-employer status under the National Labor Relations Act (“NLRA”),  employers have been left wondering whether they may be held to be a joint employer of temporary or contract workers that they retain through staffing and temporary agencies.

These concerns have been echoed by employers in other contexts as other agencies, such as the United States Department of ...

The President earlier this week announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to serve as a Member of the National Labor Relations Board. Mr. Kaplan is a Republican and once confirmed, his taking a seat on the Board will be an important step in the move towards a more employer-friendly Republican majority that can be expected to reconsider many of the decisions of the Democratic majority Obama Board. Mr. Kaplan’s nomination is for the seat most recently held by Member Harry Johnson, and will be for a full ...

On June 7, 2017, in RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer’s contention that “a text message cannot be found to constitute an unlawful interrogation” and found that a coercive text message, just like a coercive face-to-face meeting or a coercive phone call, could serve as evidence that the employer had unlawfully threatened or interrogated employees concerning their union support or activity in violation of the National Labor Relations Act ...

In a move likely to impact employers in a variety of industries, U.S. Secretary of Labor Alexander Acosta announced on June 7, 2017 that the Department of Labor has withdrawn the Administrator’s Interpretations (“AIs”) on independent contractor status and joint employment, which had been issued in 2015 and 2016, respectively, during the tenure of former President Barack Obama.

The DOL advised that the withdrawal of the two AIs “does not change the legal responsibilities of employers under the Fair Labor Standards Act . . . , as reflected in the department’s long-standing ...

Since the early 1980s, the NLRB has vacillated back and forth on whether non-union employees are entitled to have a co-worker present during an investigatory interview that could result in discipline -- a right that has long been afforded union employees pursuant to the United States Supreme Court’s holding in NLRB v. Weingarten, 420 U.S. 251 (1975). In the 42 years since the Supreme Court first extended this right to union employees in Weingarten, the NLRB has changed its position four times as to whether "Weingarten rights" extend to non-union employees.  In what can only be viewed ...

According to news reports, the Trump administration has submitted Marvin Kaplan and William Emanuel for FBI background checks, and it plans to nominate them by June to fill a pair of vacancies at the National Labor Relations Board (“NLRB”).

The administration hopes to have the new members confirmed by the Senate before the August recess.

Kaplan is currently counsel to the commissioner of the independent Occupational Safety and Health Review Commission. He previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

As we recently reported, Dish Network, LLC unwittingly fell into the trap of a stipulated record, which proved fatal to its defense of a confidentiality admonishment issued to a suspended employee. The stipulated record in Dish Network, LLC did not set forth any business justifications for the confidentiality admonishment – an indispensable element in proving the lawfulness of such orders. Dish Network endeavored to cure this deficiency in its post-hearing brief, but the Board rejected its belated effort, in part, because the stipulated record was silent on this issue. This ...

[caption id="attachment_1697" align="alignright" width="150"] Philip Miscimarra. Credit: NLRB.gov.[/caption]

On April 24, 2017 President Trump designated Philip Miscimarra as Chairman of the National Labor Relations Board (NLRB or Board). The move follows the President’s late January designation of Board Member Miscimarra as Acting Chairman.

A Republican Chair

Miscimarra, a management-side labor lawyer and a Republican, was nominated to serve on the Board by then President Obama in 2013 and was confirmed by the Senate for a four year term that continues through ...

Ever since the National Labor Relations Board (“NLRB”) issued its August 2015 decision in Browning-Ferris Industries of California, Inc., holding two entities may be joint employers if one exercises either direct or indirect control over the terms and conditions of the other’s employees or reserves the right to do so, the concept of joint employment has generated increased interest from plaintiffs’ attorneys, and increased concern from employers. Questions raised by the New York Court of Appeals in a recent oral argument, however, indicate that employers who engage ...

On March 21, 2017, the National Labor Relations Board (“NLRB” or “Board”) found that a Teamsters local violated Section 8(b)(1)(A) of the National Labor Relations Act (“Act”) by failing to provide sufficient information about the financial expenditures of the local and its affiliates to two workers employed in a bargaining unit who exercised their rights to object to paying union dues and fees pursuant to Communications Workers v. Beck, 487 U.S. 735 (1988).

Teamsters Local 75 – Schreiber Foods

In Teamsters Local 75, affiliated with the International Brotherhood of ...

In the new issue of Take 5, our colleagues examine important and evolving issues confronting owners, operators, and employers in the hospitality industry:

• Avoiding “Perfectly Clear” Successor Status When Acquiring a Property with a Union Workforce Now Requires Greater Vigilance

• Restaurant Manager Misclassification Complaints Highlight Important Defense Strategies for Hospitality Owner/Operators

• Managing the Rise in Hospitality Data Breaches

• Buyer Beware: Purchasing Assets from a Unionized Employer May Come with a Nasty Withdrawal Liability Surprise

• Are ...

Equal pay for equal work has been required for many years, but, as of late, this rather static requirement has become the focal point of regulators, state and local governments, and activists. In order to achieve equality in compensation, the efforts are becoming increasingly creative with new pushes for transparency, privacy, and/or disclosures. Financial services firms are often the target and should not only be aware of these innovative measures and requirements but also consider what proactive actions to put in place.

Eliminating Pay Secrecy

The National Labor Relations ...

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 drivers were independent contractors and therefore did not have the right to ...

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 organized ...

Featured on Employment Law This Week:  The U.S. Court of Appeals for the Fifth Circuit backs the National Labor Relations Board (NLRB) in an outsourcing dispute.

The NLRB found that a management company violated the National Labor Relations Act when it outsourced the cleaning staff of a hotel that it managed. The NLRB found evidence that the outsourcing decision was related to the worker’s interest in union representation. The NLRB rejected the company’s argument that the decision was due to declining guest satisfaction, concluding that the decision was at least, in part ...

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 Election Rules – The Emphasis On “Speed Above All ...

A recent decision of the U.S. Court of Appeals for the Fifth Circuit illustrates the potential pitfalls of outsourcing in the face of a union campaign, as well as the steep hurdle employers face in overturning a decision of the National Labor Relations Board (“NLRB”). In Remington Lodging & Hospitality, LLC v. NLRB, the Fifth Circuit enforced an NLRB order holding that a hotel management company’s decision to outsource the hotel’s housekeeping department was motivated at least in part by anti-union animus and therefore violated Section 8(a)(3) of the National Labor ...

A recent decision of the United States Court of Appeals for the District of Columbia Circuit in connection with an employer’s challenge to a National Labor Relations Board (“NLRB” of “Board”) representation election in which the Board certified a “wall to wall” bargaining unit provided clear evidence of just how critical it is for employers to make detailed “offers of proof” concerning issues the Board will not allow them to litigate under the amended election rules which took effect in April 2015.

While this case involved a representation petition filed before ...

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 2011 and as a Board Member since 2010, will continue to serve under his appointment which expires in ...

On January 13, 2017, the United States Supreme Court granted certiorari to hear three cases involving the enforceability of arbitration agreements that contain class action waivers.

Whether such agreements are enforceable has been a hotly contested issue for several years now, particularly in cases involving wage-hour disputes.

The Fifth Circuit has held that such waivers can be enforceable (NLRB v. Murphy Oil, Inc.), joining the Second and Eighth Circuits in that conclusion. The Seventh (Epic Systems, Inc. v. Lewis) and Ninth Circuits (Ernst & Young LLP v. Morris) have held that ...

In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors.

A Position Expressly Created to be Supervisory is Not Supervisory, According to the Board

In 2016, Lakewood Health Center (“Lakewood”) restructured its staffing system and replaced charge nurses with a newly created position, Patient Care Coordinator (“PCC”). According to the uncontradicted testimony of Lakewood Vice-President of Patient ...

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

• Impact of the Defend Trade Secrets Act
• States Called to Ban Non-Compete Agreements
• Paid Sick Leave Laws Expand
• Transgender Employment Law
• Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
• NLRB Addresses Joint Employment
• NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, "Top Five Employment, Labor & Workforce Management Issues of 2016."

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

• Impact of the Defend Trade Secrets Act
• States Called to Ban Non-Compete Agreements
• Paid Sick Leave Laws Expand
• Transgender Employment Law
• Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
• NLRB Addresses Joint Employment
• NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, "Top Five Employment, Labor & Workforce Management Issues of 2016."

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

• Impact of the Defend Trade Secrets Act
• States Called to Ban Non-Compete Agreements
• Paid Sick Leave Laws Expand
• Transgender Employment Law
• Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
• NLRB Addresses Joint Employment
• NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, "Top Five Employment, Labor & Workforce Management Issues of 2016."

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

• Impact of the Defend Trade Secrets Act
• States Called to Ban Non-Compete Agreements
• Paid Sick Leave Laws Expand
• Transgender Employment Law
• Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
• NLRB Addresses Joint Employment
• NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, "Top Five Employment, Labor & Workforce Management Issues of 2016."

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

• Impact of the Defend Trade Secrets Act
• States Called to Ban Non-Compete Agreements
• Paid Sick Leave Laws Expand
• Transgender Employment Law
• Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
• NLRB Addresses Joint Employment
• NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, "Top Five Employment, Labor & Workforce Management Issues of 2016."

As we previously reported, the ambush election rules implemented by the National Labor Relations Board (“Board”) last year tilted the scales of union elections in labor’s favor by expediting the election process and eliminating many of the steps employers have relied upon to protect their rights and those of employees who may not want a union. We warned that in addition to rapidly expediting election timeframe, the regulations were full of technical and burdensome procedural mandates on employers.  The Board further emphasized the pro-union impact of these requirements ...

Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: “Policies Prohibiting 'Insubordination or Other Disrespectful Conduct' and 'Boisterous or Disruptive Activity in the Workplace' Struck Down by NLRB Majority.”

Following is an excerpt:

Once again seemingly appropriate work rules have been under attack by the National Labor Relations Board (“NLRB”). In a recent decision (Component Bar Products, Inc. and James R. Stout, Case ...

Once again seemingly appropriate work rules have been under attack by the National Labor Relations Board (“NLRB”). In a recent decision (Component Bar Products, Inc. and James R. Stout, Case 14-CA-145064), two members of a three-member NLRB panel upheld an August 7, 2015 decision by an Administrative Law Judge (“ALJ”) finding that an employer violated the National Labor Relations Act (“NLRA” or the “Act”) by maintaining overly broad handbook rules and terminating an employee who was engaged in “protected, concerted activity” when he called another ...

One of the most controversial issues in employment law these days involves the position of the National Labor Relations Board (“NLRB” or “Board”) that an employer violates the National Labor Relations Act (“NLRA”) when it requires employees to pursue any dispute they have with their employer on an individual, rather than on a class or collective action, basis with other employees. It is a position that has been adopted by two circuit courts and rejected by three—a conflict that suggests that the issue is ripe for U.S. Supreme Court review.

The NLRB has contended that ...

Retail employers dismayed by employees publicly airing workplace grievances in disparaging social media posts must think twice before taking disciplinary action.  On August 18, 2016, the National Labor Relations Board (“NLRB”) confirmed the finding by Administrative Law Judge Susan A. Flynn that Chipotle’s social media policy forbidding employees from posting “incomplete” or “ inaccurate” information, or from making “disparaging, false, or misleading statements” on Twitter, Facebook and other social media sites violates Section 8(a)(1) of the ...

In August 2015, the National Labor Relations Board (“Board”) issued its decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), adopting a new standard for determining whether a company is a joint employer and therefore subject to all of an employer’s legal obligations under the NLRA with respect to the employees of another employer that provides it with services, leased or temporary labor, or the like. Since then, there have been many dire predictions as to how this new test would result in finding businesses to be joint employers of the employees ...

The National Labor Relations Board (NLRB or Board) has ruled that graduate teaching assistants, i.e. graduate students who provide instruction and assist faculty with research as part of their own post-graduate education are “employees” within the meaning of the National Labor Relations Act (NLRA or Act), and thus have the right to join unions and engage in collective bargaining with the universities and colleges where they study.

For those who follow the Board, the 3-1 decision in Columbia University in, 364 NLRB No. 90 (2016) should come as no surprise. This past January ...

On March 26, the General Counsel (“GC”) of the NLRB signaled that he will be asking the Board to overturn or modify many precedents that negatively impact unions when it comes to organizing and collective bargaining. In Memorandum GC 16-01 (“GC Memo”), the GC directed the Regional Directors in the Board’s offices across the country, who are charged with investigating unfair labor practice (“ULP”) charges and deciding which cases to take to trial, to forward all charges involving issues identified in the GC Memo to the GC’s Division of Advice (“Advice”). It is ...

The National Labor Relations Board (NLRB or Board), which continues to apply an ever expanding standard for determining whether a company that contracts with another business to supply contract labor or services in support of its operations should be treated as a joint employer of the supplier or contractor’s employees, is now considering whether a company’s requirement that its suppliers and contractors comply with its Corporate Social Responsibility (CSR) Policy, which includes minimum standards for the contractor or supplier’s practices with its own employees can ...

The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 NLRB #39 (2016) that it will now conduct representation elections and require collective bargaining in single combined units composed of what it refers to as “solely employed employees” and “jointly employed employees,” meaning that two separate employers will be required to join together to bargain over such employees’ terms and conditions of employment.” To understand the significance of Miller & Anderson, one must consider the Board’s ...

On June 20, 2016, the United States Supreme Court granted a request by the National Labor Relations Board (“NLRB” or the “Board”) to review a decision from the D.C. Circuit Court of Appeals, which found that the 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 remained in that position after President Barack Obama nominated him to permanently fill the General Counsel role.

In June 2010, President Obama named Solomon as Acting General Counsel for the Board. Then, just ...

The National Labor Relations Board, in a 2-1 decision by Chairman Mark Pearce and Member Kent Hirozawa, in American Baptist Homes of the West, 364 NLRB No. 13, has adopted a new standard for considering the legality of an employer’s hiring of permanent replacements in response to economic strikes. The decision, in the words of Member Philip Miscimarra’s dissent, is not only a “deformation of Board precedent,” but “a substantial rearrangement of the competing interests balanced by Congress when it chose to protect various economic weapons, including the hiring of ...

Imagine that an employee asks to come to your office to address concerns about workplace harassment. Pursuant to the company’s open door and non-harassment policies, you promptly schedule a meeting. When the employee arrives, she sits down, sets her smartphone on the desk facing you, and turns on the video camera before beginning to speak. Can you instruct her to turn off the recording device? Can you stop the meeting if she refuses? Would the answer change if the recording was surreptitious?

The answer to questions like these have become more blurry since the decision last year by the ...

[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]

The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration agreement that it required all of its workers to sign, requiring them to bring any wage and hour claims that they have against the company in individual arbitrations “violates the National Labor Relations Act (NLRA) and is unenforceable under the Federal ...

[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]

National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has announced in a newly issued Memorandum Regional Directors in the agency’s offices across the country that he is seeking a change in law that would make it much more difficult for employees who no longer wish to be represented by a union to do so.  Under long standing case law, an employer has had the right to unilaterally withdraw recognition from a union when there is objective evidence that a majority of the ...

In a recent decision, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) ruled that Quicken Loans’s (the “Company”) Detroit, Michigan branch (along with five related entities) violated the National Labor Relations Act (“NLRA”) by using and disseminating an employee manual in its non-union workplace that the ALJ concluded interfered with employees’ rights under the NLRA.  This was yet another case in which the NLRB took aim against Quicken Loans for adopting work rules and/or policies that an ALJ found would “chill” ...

[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]

NLRB General Counsel Richard F. Griffin, Jr. has released a General Counsel Memorandum that offers an unusually frank insight into how he intends to use his office for the remainder of his term to pursue what he calls “initiatives and/or priority areas of the law and/or labor policy” to set an agenda to expand the rights of both represented and unrepresented employees and to pare back, substantially in many circumstances, the rights of employers in collective bargaining, responding ...

A recent National Labor Relations Board (“NLRB”) decision by an Administrative Law Judge (“ALJ”) found numerous violations of the National Labor Relations Act (the “Act”) stemming from the reaction of a mortgage brokerage firm to a conversation in which one of its bankers used profanity and complained about a client in an office restroom.  While this decision may seem extreme to some, it is also an example of the expansive view that the NLRB is taking in deciding what types of employee communication and activities, particularly with respect to non-unionized workforces ...

Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: "NLRB Finds a Non-Union Employee’s Foul-Mouthed Complaining About Clients Protected Activity and Slams Employer’s Separation Agreement."

Following is an excerpt:

A recent National Labor Relations Board (“NLRB”) decision by an Administrative Law Judge (“ALJ”) found numerous violations of the National Labor Relations Act (the “Act”) stemming from the reaction of ...

One of the questions asked of NLRB General Counsel Richard F. Griffin, Jr. following his presentation at this week’s meeting of the Committee on Developments Under the National Labor Relations Act of the American Bar Association was whether the National Labor Relations Board will follow the EEOC’s lead and adopt a practice of turning employers’ position statements in ULP investigations over to the unions and individuals who have filed the charges.

While his carefully phrased response was that the General Counsel’s office has not made such a decision at this time, most of ...

In a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor.  The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes ...

In a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor.  The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes ...

Employers in the technology, media and telecommunications industry are faced with many workplace management and legal compliance challenges.  Among these are trends in the shared economy and rise of the contingent workforce, data privacy and security, and use of social media in connection with recruitment, employee monitoring and termination.  At the recent  Epstein Becker Green 34^th Annual Workforce Management Briefing held at the New York Hilton, members of the firm’s TMT Group including the authors of this post, along with in-house counsel speakers Rebecca Clar of AOL and ...

Our colleagues Jeffrey H. Ruzal, Steven M. Swirsky, Joshua A. Stein, Brandon C. Ge, Adam C. Solander, and Valerie Butera contributed to Epstein Becker Green’s recent Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues in the hospitality industry:

1. The U.S. DOL’s Aggressive Moves to Expand FLSA Coverage
2. The NLRB’s New Test for Determining Joint-Employer Status and Its Impact on Hospitality Employers
3. At the 25th Anniversary of the ADA, How to Avoid Getting Bitten by Service Animal Complaints
4. The Cadillac Tax: What ...

Unions no longer will need to gather employees’ signatures on authorization cards before they can file a petition with the National Labor Relations Board (“NLRB” or “Board”) for a representation election.  General Counsel Richard F. Griffin, Jr. has issued Memorandum 15-08 (pdf) announcing that effective immediately unions filing petitions will be allowed to submit and the Board will “accept electronic signatures in support of a showing of interest if the Board’s traditional evidentiary standards are satisfied.”

Acceptance of Electronic Signatures ...

The National Labor Relations Board (“NLRB” or “Board”) has issued its long-anticipated  decision in Browning-Ferris Industries, 362 NLRB No. 186 (pdf), establishing a new test for determining joint-employer status under the National Labor Relations Act (“NLRA” or the “Act”).  Because this revised standard will resonate with businesses relying on contractors and staffing firms throughout the economy and across industry lines, employers should be wary of its potential impact upon relationships with service providers that are supportive of, or critical to ...

Evidence continues to mount as to how much more quickly representation elections are being held since the National Labor Relations Board’s (“NLRB” or “Board”) Amended Representation Election Rules that took effect on April 14, 2015. Melanie Trottman of The Wall Street Journal has crunched the data and reports today that the median number of days between the filing of a representation petition and the day on which employees vote has fallen to 23 days in uncontested elections where the employer and union stipulated to the terms for the vote, and 25 days in the 20 contested ...

The National Labor Relations Board has issued an Order (PDF) denying a request for a special appeal filed by McDonald’, USA, LLC and its franchisees (collectively referred to as “McDonald’s” in the Board’s Order) and found that the Administrative Law Judge presiding in the unfair labor practice hearing did not err when she denied McDonald’s motion for a bill of particulars explaining the factual basis for the General Counsel’s claim that McDonald’s, USA, LLC and the named franchisees are joint employers.

The ALJ Had Denied McDonald’s Motion for a Bill of ...

One of the hallmark initiatives of NLRB General Counsel Richard F. Griffin Jr. has been the pursuit of more aggressive remedies in response to what the General Counsel considers to be egregious unfair labor practices (“ULP’) activity.  While his predecessors and prior Board members spoke of “special remedies” that they would seek to impose in what they deemed extraordinary cases, General Counsel Griffin and today’s National Labor Relations Board (“NLRB” or “Board”) are much more frequently arguing for and directing remedies that go beyond those that the NLRB ...

Last week we reported that the NLRB continues its assault on arbitration agreements in spite of judicial rejection of its holdings.  Days after our post, another federal judge disregarded the NLRB’s holdings and actually dismissed employees’ wage and hour claims because the employees failed to follow the court’s order compelling the employees to arbitration.

Specifically, on July 8, 2015, a federal judge dismissed (PDF) the original wage and hour collective action that ultimately led to the NLRB’s decision in Murphy Oil where it held that arbitration agreements ...

On July 10, in Venetian Casino Resort, LLC v. N.L.R.B., the D.C. Circuit Court of Appeals ruled that a resort and casino operator’s call to the Las Vegas Police Department, asking it to take action in response union demonstrators trespass on its private property, was protected by the First Amendment and did not violate the National Labor Relations Act (“Act”). The Court’s decision vacated a decision by the National Labor Relations Board (“NLRB” or “Board”), in which the Board found that the act of calling the police in those circumstances unlawfully interfered with ...

Last month, in two separate cases, the National Labor Relations Board (“NLRB” or the “Board”) and an NLRB Administrative Law Judge (“ALJ”) found against employers in cases involving the right of employees to wear union insignia at work. While the Board has long held that wearing union t-shirts, stickers and the like is a form of concerted protected activity protected by Section 7 of the National Labor Relations Act (“Act” or “NLRA”), it has historically recognized the right of employers to limit this when necessary to maintain an appropriate atmosphere, these ...

The National Labor Relations Board (NLRB or Board) invited interested parties to submit amicus briefs in Miller & Anderson, Inc. in connection with the Board’s reexamination of critical issues affecting the ability of unions to organize employees employed by temporary and staffing agencies (“temporary employees”) in the same bargaining units as employees of an employer that supplements its direct workforce with temporary employees.

Elections Involving Joint-Employers

Under the existing law, the Board will only conduct an election and certify a unit that includes ...

Even further expanding the National Labor Relations Board’s (“NLRB”) holdings in D.R. Horton and Murphy Oil limiting employer requirements concerning class action waivers, on June 26, 2015, an NLRB administrative law judge (“ALJ”) ruled that even a non-mandatory arbitration agreement that is voluntarily entered into by employees is unlawful if it requires employees to waive joint, class or collective actions in all forums, judicial and arbitral.

In November 2011, AT&T Mobility Services (“AT&T”) sent via email a Management Arbitration Agreement ...

The National Labor Relations Board (“NLRB” or “Board”), in its June 26, 2015, Decision and Order in American Baptist Homes of the West d/b/a Piedmont Gardens (PDF) has overruled what it described as a longstanding “blanket exemption” allowing employers to protect the confidentiality of witness statements taken during investigations and not provide them to a union in response to an information request. In place of the long standing body of law protecting the confidentiality of witness statements, which was established in recognition of the needs for ...

While we have been reminding readers of the fact that  the National Labor Relations Act (the “Act”) protects employees regardless of whether they are represented by a union and the Act applies to non-unionized workforces, too, recently  a National Labor Relations Board (the “NLRB”) Administrative Law Judge issued a decision following an unfair labor practice (“ULP”)  hearing based on a charge filed by a teacher at New York City’s prestigious Dalton School that should serve as an object lesson for employers in all non-union businesses.

The case, Dalton School, Inc.

One of two lawsuits challenging the National Labor Relations Board’s authority to issue the expedited election rules that took effect on April 14, 2015, has now been dismissed by Judge Robert L. Pitman of the United States District Court for the Western District of Texas in Austin.  In his 27 page decision, Judge Pitman that the plaintiffs, including Associated Builders and Contractors of Texas and the National Federation of Independent Businessmen, could not establish that the NLRB’s December 14, 2014 rule “Representation – Case Procedures; Final Rule,” (the “New ...