Joshua Fox
Associate
Joshua S. Fox is an associate in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.
As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh assisted with the successful representation of the Toronto Blue Jays in their case against All-Star Josh Donaldson, which was the largest club victory in salary arbitration in recent years. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations, as well as similar claims brought on behalf of scouts. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.
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In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA. The Board held, … Continue Reading
NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings. The stated goal of the Memo is to “promote transparency and apply fairness” during … Continue Reading
We have seen this movie before. NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board. Then the current iteration of the Board reverses its own precedent and sides with the D.C. Circuit. This situation occurred recently with regard to whether the “clear and … Continue Reading
On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge of the union president violated the NLRA’s prohibitions against union restraint or coercion (Section 8(b)(1)(A)) and causing employer discrimination … Continue Reading
On Sunday, we reported on an eleventh-hour district court order striking down large portions of the NLRB’s new representation election rules that were set to go into effect on May 31, 2020. The district court order held certain portions of the rule were unlawful because they failed to follow proper notice-and-comment rulemaking as required for … Continue Reading
After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020. However, an eleventh-hour district court order struck down a significant portion of the rule as unlawfully implemented for failing to follow proper administrative procedure, casting … 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
In December 2019, the NLRB announced its Final Rule governing representation case procedures. The Final Rule applies to petitions filed on or after May 31, 2020. With the effective date fast approaching, NLRB Regions nationwide are holding public information sessions to explain these changes. Recently, on May 21, 2020, Region 25 in Indianapolis hosted its … Continue Reading
As we discussed here, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until after reopening and a return of a “substantial complement” of employees. See Danbury Ambulance Service, Inc., 369 NLRB 68 (2020). The … Continue Reading
As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots … Continue Reading
As most of the country’s workforce continues to adjust to the new realities of social distancing, stay-at-home orders, and limited travel, the practice of law and the forums for adjudicating disputes have shifted to video and telephonic hearings to ensure that the wheels of justice continue to turn notwithstanding COVID-19. The NLRB has been no … Continue Reading
The Board continues to issue decisions amidst the COVID-19 pandemic, while acknowledging that business operations around the country are far from “business as usual.” The agency is up and running. Representation elections vote counts are being conducted via video conference as are hearings. The remedy stage of unfair labor practice proceedings also has caught up … 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
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
As we reported here, on April 1, 2020, the NLRB published its final rule making three amendments to its rules and regulations governing union elections (relating to the Board’s blocking charge policy; timing and notice requirements attendant to voluntary recognition; and 9(a) recognition in the construction industry). The rule was expected to be effective as … Continue Reading
Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the Board nevertheless continues moving forward on non-COVID-19 matters as well. On March 31, 2020, the NLRB announced it had … Continue Reading
Mid-sized businesses (defined as 500 to 10,000 employees) impacted by the Coronavirus may be able to obtain relief loans under the COVID-19 stimulus law, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), but only if non-union employers agree not to oppose the unionization of their workforce for the term of the loan, and … Continue Reading
On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC-20-04 to provide guidance to NLRB regional offices and the general public. Acknowledging that “we are [currently] in an unprecedented situation,” the General Counsel provided summaries of several NLRB decisions discussing how, if at all, an employer’s duty to bargain under NLRA Section 8(d) … Continue Reading
The NLRB continues to operate during the novel coronavirus crisis. Regional offices are largely working remotely as is the rest of the country. The Board itself continues to issue decisions, albeit at a slower pace than usual. On February 4, 2019, the NLRB invited interested parties to file briefs addressing whether the agency should decline … Continue Reading
The NLRB announced today in a press release that “[d]ue to the extraordinary circumstances related to the COVID-19 pandemic,” all representation elections, including mail ballot elections, will be suspended for the next two weeks, through and including April 3, 2020. This means that any representation elections previously scheduled from now through April 3, 2020 will … Continue Reading
When it comes to an unfair practice allegation asserting an employer’s statement is unlawful, words matter. And, so does context. Under NLRB case law, the actual employer statements are evaluated as well as the overall context the words were uttered to determine whether there exists coercion. Recently, the NLRB addressed an unusual case where an … Continue Reading
Applying the facially neutral work rule test laid out in Boeing (see here), the Board recently reversed an Administrative Law Judge decision, concluding that the employer maintained lawful workplace rules restricting employee use of (i) cell phones in commercial vehicles, (ii) the company email server for purposes not related to work, and (iii) the disclosure … Continue Reading
On February 7, 2020 the National Labor Relations Board (“NLRB”) sued the State of Oregon in federal court seeking a declaratory judgement to invalidate a state statute that protects employees who refuse to attend lawful compulsory meetings held by employers during organizing campaigns from adverse employment action. These meetings, pejoratively referred to as “captive audience” … Continue Reading
On Thursday, February 6, 2020 the U.S. House of Representatives passed the Protecting the Right to Organize Act, also known as the “PRO Act”. The legislation (which can be viewed here), passed mostly along party lines, would provide sweeping changes to the NLRA that would enhance greatly the ability of unions to organize employees and … Continue Reading
NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements
By Mark Theodore, Joshua Fox and Jacob L. Hirsch on Posted in Uncategorized
NLRB GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations
By Steven Porzio, Joshua Fox and Dominique Kilmartin on Posted in Investigations, Investigations, NLRA, NLRB, Section 7
NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions
By Mark Theodore, Joshua Fox and Eric Novak on Posted in NLRA, NLRB, Section 7
Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board
By Mark Theodore, Joshua Fox and Austin McLeod on Posted in 8(b)(2), Investigations, NLRA, NLRB, Section 8(b)(1)(A)
Update: Despite Order Striking Down Portions of NLRB Rulemaking on Representation Election Procedures, NLRB Implements Rules Unaffected by Order
By Steven Porzio, Joshua Fox, Heylee Bernstein and Austin McLeod on Posted in NLRB Election Rules, Representation Elections
Breaking: Federal Court Strikes Down New NLRB Rules on Representation Election Procedures; Implementation Delayed and Status of the Rules Uncertain
By Michael Lebowich, Joshua Fox and Heylee Bernstein on Posted in NLRB Election Rules, Representation Elections
NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing
NLRB Regions Hold Information Sessions to Discuss Representation Case Changes
By Mark Theodore, Joshua Fox and Heylee Bernstein on Posted in NLRB Election Rules
Update: NLRB Extends Suspension of Notice-Posting Requirements to Cases Involving Informal Settlement Agreements
By Peter D. Conrad, Joshua Fox and Alex Downie on Posted in COVID-19, NLRA, NLRB
BREAKING: NLRB to Resume Unfair Labor Practice Trials June 1, 2020
By Mark Theodore, Joshua Fox and Alex Downie on Posted in COVID-19, NLRA, NLRB
NLRB: Hearings in Representation Cases with Witnesses Must Be Conducted By Videoconference during COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRA, NLRB, NLRB Election Rules, Representation Elections
NLRB Suspends Remedial Notice-Posting Requirements for Facilities Shutdown During COVID-19 Pandemic
By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB
NLRB: Unions Also Obligated To Provide Timely Relevant and Necessary Information Requested by Employers
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)
Update: NLRB Delays Implementation of Final Election Rule Changes to July 31, 2020
By Mark Theodore and Joshua Fox on Posted in COVID-19, NLRA, NLRB
NLRB Issues Final Rule Reworking Union Election Procedures
By Mark Theodore, Joshua Fox and Scott Tan on Posted in NLRA, NLRB, Rulemaking
CARES ACT Relief for Mid-Size Businesses Comes with Important Union Related Conditions
By Joseph Baumgarten, Michael Lebowich, Joshua Fox and Dominique Kilmartin on Posted in COVID-19, NLRA, NLRB Election Rules
NLRB General Counsel Issues Guidance on the Duty to Bargain During Emergencies
NLRB Decides to Assert Jurisdiction Over Charter Schools On A Case By Case Basis
By Mark Theodore, Joshua Fox and Samantha Shear on Posted in NLRA, NLRB
NLRB Suspends Representation Elections through April 3, 2020 due to COVID-19 Pandemic
By Michael Lebowich and Joshua Fox on Posted in Coronavirus, NLRA, NLRB, Representation Elections
Employer’s Poll of Workforce Not Unlawful Mass Interrogation, NLRB Rules
By Mark Theodore, Joshua Fox and Thomas B. Fiascone on Posted in NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1)
Applying the Boeing Standard, NLRB Upholds Employer’s Policies Restricting Cell Phone Use, Non-Work Email Use and Disclosure of Confidential Information
By Mark Theodore, Joshua Fox and Rachel Therese Gulotta on Posted in Confidentiality, Handbook, NLRA, NLRB, Section 7
NLRB Sues Oregon Seeking To Invalidate State Law Prohibiting “Captive Audience” Meetings
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, NLRB Election Rules, Preemption
Congress Passes Labor-Friendly “PRO Act”
By Mark Theodore, Joshua Fox and Jordan Simon on Posted in NLRA, NLRB, Protected activity, Section 7
