Last year about this time, the NLRB changed the standard for reviewing handbook rules. The new standard takes into consideration the fact there are many other interests other than the NLRA at play in a workplace, and seems to have quieted the frenzied scrutiny of employer policies. Over the years, the heightened scrutiny of employer policies has resulted in … Continue Reading
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute. In our last post, we discussed a simmering dispute over the circumstances which an NLRB member must recuse himself or herself. This issue, we’ll call it Recusalgate, has taken an interesting turn. In ADI … Continue Reading
In what could signify the beginning of the end for Purple Communications, Inc., 361 NLRB 1050 (2014) and guaranteed employee access to Employer computer systems for union organizing purposes, the NLRB issued a notice on August 1 inviting the filing of briefs on whether the Board should uphold, modify or overrule the decision. Under Purple … Continue Reading
Following up on the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), on June 6, NLRB General Counsel Peter Robb issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules. As we reported this past December (here), … Continue Reading
NLRB Reverses Precedent on Joint Employer Liability and Standard Governing Employee Handbooks This afternoon, just two days prior to the end of Chairman Philip Miscimarra’s term, the NLRB issued a pair of 3-2 decisions overruling significant precedent regarding joint-employer status and the legal standard governing whether workplace rules violate the exercise of Section 7 rights … Continue Reading
It is mid-November, and the Board is at a full complement, and even has a new General Counsel. While we haven’t seen anything significant (or really, anything at all) come out of the newly constituted Board we know the new members are feverishly working on getting some decisions out. The full complement of the Board will last only a few … Continue Reading
The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals. This is the same court that recently declared the agency was acting more as an “advocate than adjudicator” in a case involving access to an employer’s premises. Weingarten, which derives its name from the United … Continue Reading
We are on the verge of the Board majority changing for the first time in approximately a decade. The President’s two appointees, if confirmed, will bring the Board up to a full five members. After the new members are seated we likely will see big changes to the law. In the meantime, the Board continues to … Continue Reading
The change in a presidential administration always brings changes to government agencies, including the NLRB, as new appointments are made reflecting the policy preferences of the administration. The NLRB is not immune to this change and it has been historical practice for the president to appoint three members from the party of the administration and … Continue Reading
The first day of employment is often chaotic. New employees must learn their way around the jobsite, meet (and remember the names of) many new people and otherwise familiarize themselves with working at a new job. Oh, and there’s the paperwork. Seemingly endless mounds of paperwork. New employees are asked to sign a multitude of documents … Continue Reading
So far, it has been a long quiet Summer with little NLRB activity, – with the exception of the recent ruling that temporary agency employees can be part of a bargaining unit with the principal employer’s employees, of course. More change may be coming, though. The end of the NLRB’s fiscal year is September 30 and … Continue Reading
We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions. See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading
The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed. Many of the recent Board cases involve correcting decisions that were invalidated by the Supreme Court in its Noel Canning recess appointment decision. … Continue Reading
The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law. Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an … Continue Reading
In a complex, twenty-eight page opinion, a sharply divided NLRB has ruled that when an individual employee seeks assistance from fellow employees with respect to a violation under Title VII (or other workplace laws), the action is not only concerted but also presumptively for the purpose of mutual aid or protection, and thereby also covered … Continue Reading
A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.” We noted, for instance, that the Board recently held that an employee’s use of derogatory gender-based comments may not not render a protected outburst “unprotected,” even if the EEOC and the myriad State … Continue Reading
Last week the NLRB issued several significant decisions. In the press release announcing the decisions, the agency noted that most were actually issued “the week of December 10, but were issued this week following editing and formatting which is typical for the final decisions in a Member’s term.” This is a reference to Member Hayes’ … Continue Reading
In the last couple of years, we have seen close scrutiny of employer handbooks by the NLRB. If the agency deems a policy, or a portion of a policy, to be something employees might reasonably construe to inhibit protected activities, it is found to be unlawful. These types of cases are vexing. if only because … Continue Reading
Now that the election is over, one of the main questions being asked is, what next? We recently held a Webinar entitled “The Latest at the NLRB and Post-Election Developments” to address this question. It seems clear that with Congress still divided that there likely will not be much in the way of legislative change. The pressing issues … Continue Reading
As the end of its fiscal year approaches (September 30), the NLRB pushes more decisions out than it has in the last several weeks. Not a whole lot are of note, honestly. There seems to be an uptick of default judgments being issued,-findings of violations of the NLRA without a formal hearing,–but it is difficult … Continue Reading
Last year the NLRB’s order of the day was sweeping change. That brought us the employee rights poster, the ambush election rules, and micro unions. The Board today is not acting in such a bold manner, and instead is seeking gradual change through a policy of incrementalism. We saw recently how the current Board expanded … Continue Reading
Employers, particularly outward facing ones, can find external union protest activity in front of the business to be annoying. The NLRB recently ruled that the employer cannot enlist employees to assist in countering such efforts. In Fresh & Easy Neighborhood Market, Inc., 358 NLRB No. 65 (June 25, 2012).pdf, the employer, an operator of grocery … Continue Reading
Following on the success of our March webinar, “Labor Relations Update: Live,” Ronald Meisburg and Katharine Parker will be presenting a webinar on Wednesday, June 13th, entitled “Social Media in Perspective – Labor and Employment Law Developments.” Ronald is a frequent author of this blog and the co-head of Proskauer’s Labor-Management Relations Group. Katharine is … Continue Reading
Mid-April is normally a gloomy time as people prepare to file tax returns. There is some cause for celebration, though, as a federal district judge in South Carolina today (Friday the 13th of all days), issued a ruling striking down in its entirety as unlawful the NLRB’s requirement that employers post the so-called employee rights notice … Continue Reading
