Elizabeth Dailey
Elizabeth Dailey is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.
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With Congress failing to make the organizing process easier for unions, the NLRB General Counsel Jennifer Abruzzo is now asking the Board to require employers to recognize unions without a secret ballot election. As foreshadowed by her August 2021 memo on Mandatory Submissions to Advice, in a brief filed in Cemex Construction Materials Pacific LLC, … Continue Reading
Today, the National Labor Relations Board (NLRB), along with the U.S. Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC), announced the creation of an interagency initiative to raise awareness of worker retaliation issues. Building upon their pre-existing interagency relationships, the NLRB, DOL, and EEOC seek to further protect workers from unlawful retaliatory … Continue Reading
As we discussed here, members of the House Education and Labor Committee have been attempting to end-run the procedural hurdles that have prevented the Protect the Right to Organize Act (“PRO Act”) legislation from becoming law, through a process called “budget reconciliation.” (For a refresher on the PRO Act, see our blog posts on the … Continue Reading
Today, General Counsel Jennifer Abruzzo issued a very significant memorandum on the status of college athletes as “employees” under the National Labor Relations Act. Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act, GC 21-08 (September 29, 2021). In today’s memorandum, GC Abruzzo reinstates a former GC Memorandum, GC 17-01, … Continue Reading
In keeping with the momentum of her Office, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum yesterday to all Regional Offices advising them to request that the Board exercise its broad discretion in fashioning remedies for workers impacted by unfair labor practices, indicating the General Counsel’s intent to impose more onerous penalties … Continue Reading
The NLRB’s “contract coverage” standard for determining whether a collective bargaining agreement privileges an employer to unilaterally change terms and conditions of employment received support last week from a federal court of appeals, further solidifying the legitimacy of the relatively new standard at a time when the Board is undergoing a change in leadership and … Continue Reading
A split Board concluded this week that a union did not engage in unlawful secondary activity under the NLRA when it stationed a 12-foot-tall inflatable rat—known all too well by employers as “Scabby the Rat”—and two 8-foot banners on the worksite of a neutral employer for the purpose of forcing the neutral employer to cease … Continue Reading
After being nominated by President Biden on February 17, 2021, Jennifer Abruzzo was sworn in as General Counsel of the NLRB yesterday by Chairman Lauren McFerran. Abruzzo will serve a four-year term as General Counsel, spearheading the agency’s investigation and prosecution of unfair labor practice cases and supervising the NLRB field offices in the processing … Continue Reading
As we reported here and here, there are several challenges to the authority of the Acting General Counsel of the National Labor Relations Board, Peter Sung Ohr, given President Biden’s unprecedented move of terminating the sitting General Counsel, Peter Robb, in January 2021. One recent challenge to the Acting General Counsel’s authority was brought before … Continue Reading
The Coronavirus pandemic has spawned a lot of questions—and a lot of headaches—for employers, who within the past year have needed to adapt to rapidly changing health, regulatory, and technological landscapes. With the long-awaited arrival of a vaccine comes even more questions for employers: Can I require my employees to get vaccinated? Can I require … Continue Reading
Last week, the United States Court of Appeals for the Ninth Circuit overturned a decision by the NLRB dismissing a complaint against two joint employers alleging unlawful termination in retaliation for picketing activity. The Court, reversing the Board, found that the employees’ picket was not unlawful secondary activity and therefore did not lose the protection … Continue Reading
In a recent decision by the NLRB, the Board upheld the lawfulness, in part, of an arbitration agreement that required employees to maintain the confidentiality of the arbitration proceedings, including the discovery process and the hearing. Dish Network, LLC, 370 NLRB No. 97 (March 18, 2021). However, Chairman McFerran’s considerable dissent likely signals that the … Continue Reading
After publishing the Notice of Proposed Rulemaking over a year ago, followed by tens of thousands of public comments and many months of anticipating the final rule, the NLRB announced today that it will publish a Notice of Withdrawal of the proposed student assistant rule. Under the proposed rule, students at private colleges and universities … Continue Reading
Recently, adjunct professors at Elon University and Ithaca College won victories before the NLRB and an American Arbitration Association arbitrator, respectively, that further bolster the position that adjunct, or contingent, faculty members are “employees” as defined by the NLRA. Moreover, it also suggests that there will likely be a surge of new organizing activity amongst … Continue Reading
When an employee is disciplined and then claims the employer acted on account of union animus in violation of Section 8(a)(3) of the Act, evidence to support such a claim either can be proffered through direct evidence, such as “smoking gun”-type statements made by a supervisor or top-management that the discipline was implemented due to … Continue Reading
The NLRB’s Division of Advice recently released a long-awaited Advice Memorandum (originally issued in February 2019, Chipotle Mexican Grill, Case 28-CA-229134 (Feb. 22, 2019)) concerning the validity of two workplace rules under the Boeing standard: (1) a rule encouraging employees to “[b]e…objective” in their communications; and (2) a rule requiring employees to notify the employer … Continue Reading
On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices. While a majority of the Memoranda were drafted within the past month, a few were originally issued months or years ago. Advice is the agency’s internal think tank and the … Continue Reading
As we previously reported, the NLRB published a Notice of Proposed Rulemaking (NPRM) in September 2019 regarding the employee-status of student workers at private colleges and universities. Under the proposed rule, the NLRB seeks to establish that undergraduate and graduate students performing services for compensation, including teaching and research, in connection with their studies are … Continue Reading
After a brief delay where the NLRB suspended all representation elections from March 19 through April 6, 2020 (see here and here), NLRB Regional Directors have since largely required elections to be held via mail ballot to curb the spread of COVID-19. Earlier this week, the Office of the General Counsel of the NLRB published … Continue Reading
In late May, on the eve of the effective date of the NLRB’s sweeping changes to the election process, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that certain of the new rules were substantive—not procedural—in nature, and were improperly implemented without affording the public an opportunity to … Continue Reading
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules … Continue Reading
We have often reported about how an employer’s failure to adequately respond to an information request made by a union can lead to unfair labor practice charges and litigation. Sometimes a union makes an information request for strategic reasons, not for any representational reason. Sometimes, an employer’s response can lead to further complications. The same … Continue Reading
As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics under the Act. One such important topic that the Board has devoted recent attention to has been the issue of … Continue Reading
In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions with employees related to terms and conditions of employment. In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the … Continue Reading
BREAKING: NLRB General Counsel Seeks to Scrap 50 Years of Precedent and Require Card Check Recognition
By Joshua Fox, Michael Lebowich and Elizabeth Dailey on Posted in Uncategorized
NLRB, DOL, and EEOC Announce Joint Initiative to Combat Worker Retaliation
By Steven Porzio and Elizabeth Dailey on Posted in Uncategorized
While Democrats Whittle Down Pro-Labor Provisions Of Social Spending Bill, Civil Penalties Remain
By Steven Porzio, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
BREAKING: General Counsel Abruzzo Announces that College Athletes Are Employees
By Steven Porzio and Elizabeth Dailey on Posted in NLRB
NLRB General Counsel Abruzzo Encourages Regions to Utilize More Significant Remedies When Resolving Unfair Labor Practices
By Steven Porzio and Elizabeth Dailey on Posted in NLRB
Second Circuit Adopts “Contract Coverage” Standard as Governing Standard for Unilateral Changes
By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRB
Scabby the Rat Has Been Legitimized by the NLRB
By Steven Porzio and Elizabeth Dailey on Posted in NLRA, NLRB
BREAKING: Jennifer Abruzzo is Sworn In as General Counsel of the NLRB
By Steven Porzio and Elizabeth Dailey on Posted in Biden Administration Coverage, NLRA, NLRB
District Court Approves of President Biden’s Firing of Former NLRB General Counsel, But is This the Final Word?
By Steven Porzio and Elizabeth Dailey on Posted in Biden Administration Coverage
Guidance: Can Employers of Unionized Workers Require the COVID Vaccine?
By Mark Theodore, Elizabeth Dailey and Dylan K. Tedford on Posted in COVID-19
Ninth Circuit Overturns Board Decision Finding Unlawful Secondary Picketing, Citing Insufficient Evidence of an Intent to Coerce a Neutral Employer
By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRA, Section 8(b)(4)(i)(B)
Requiring Employees to Maintain the Confidentiality of Arbitration Proceedings Held to be Lawful Under the NLRA…For Now
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA
BREAKING: NLRB Withdraws Proposed Rule Concerning Employee-Status of Student Teachers and Research Assistants
By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRB
Recent Labor Victories for Adjunct Professors Signal Likely Uptick in Contingent Faculty Organizing
By Paul Salvatore, Steven Porzio and Elizabeth Dailey on Posted in NLRA, NLRB
NLRB: An Inference of Union Animus Must Be Grounded in Sufficient Supporting Evidence under Wright Line
By Elizabeth Dailey, Joshua Fox and Mark Theodore on Posted in Uncategorized
Handbook Civility Rules Aimed at Preventing Toxic Work Environments Found Lawful by NLRB’s Division of Advice
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB Division of Advice Releases Deluge of Advice Memoranda Discussing COVID-Related ULP Charges, Confidentiality Rules, Information Requests, and Other Topics
By Mark Theodore, Joshua Fox, Rachel Therese Gulotta, Elizabeth Dailey and Caroline Guensberg on Posted in Uncategorized
Update: NLRB Final Rule Governing Employee-Status of Student Workers May Issue As Soon As September 2020
By Steven Porzio and Elizabeth Dailey on Posted in NLRA, NLRB, Rulemaking, Section 2(3), Section 7
NLRB General Counsel Announces “Suggested” Protocols for Conducting Manual, In-Person Elections Amidst the COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
Update: Federal Judge Amends Prior Order Concerning 2019 Election Rules, Affording Deference to the NLRB, but Appeal to D.C. Circuit Remains
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in Uncategorized
NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing
NLRB: Unions Also Obligated To Provide Timely Relevant and Necessary Information Requested by Employers
NLRB: Changes in Workplace Policies Not Applicable to Union Employees do not Constitute a Unilateral Action by the Employer
By Mark Theodore and Elizabeth Dailey on Posted in COVID-19, NLRB
NLRB Reaffirms Limitations on Employers’ Ability to Solicit Employee Assistance in Anti-Union Campaigning and Confidentiality Restrictions
By Mark Theodore, Joshua Fox and Elizabeth Dailey on Posted in NLRA, NLRB, Section 8(a)(1)
