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News and Updates on Employment Law

Category Archives: Labor

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NLRB Calls a Timeout in Northwestern Football Players Case

Posted in Labor
Last week, the National Labor Relations Board (NLRB) issued its long-awaited decision in Northwestern University, a case involving an attempt by scholarship football players to unionize under the National Labor Relations Act. About a year-and-a-half ago, in response to the university’s attempt to dismiss a union election petition filed on behalf of the players, a regional director decided that the students were statutory employees who could unionize. The university challenged the regional director’s decision, which set the stage for the Board’s decision.… Continue Reading

NLRB Judge Strikes Down Employee Handbook Confidentiality Policy — Including Protection of Customer and Vendor Data

Posted in Labor
An employee handbook containing policies prohibiting (1) the disclosure of confidential company information, including personnel data, (2) use of the employer’s logo or trademark except as authorized by the company and (3) obstruction and interference with government investigations, including a requirement to notify the company’s human resources representatives or law department and to obtain approval to release information for a government investigation was found to violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by an NLRB Administrative Law Judge (“ALJ”) in Macy’s Inc., JD(NY)-21-15. According to the ALJ’s decision, Macy’s employees when reading the policies could reasonably construe such policies to restrict their rights under Section 7 of the NLRA to engage in protected concerted activity for their mutual aid or protection.… Continue Reading

NLRB General Counsel Issues Memorandum Regarding “Quickie” Election Rule

Posted in Labor
On April 14, 2015, the National Labor Relations Board’s “quickie” election rule took effect (despite pending lawsuits challenging the legality of the rule). Earlier this month, the Board’s general counsel issued a 36-page memorandum to provide guidance on the new rule, which we summarize in some detail below in an effort to help employers navigate these new waters. The memorandum serves as a reminder that non-union businesses should consider implementing a labor relations strategy now so they can effectively, lawfully, and quickly respond to a notice of petition for election if they receive one under the new rule. An in-depth discussion of the general counsel’s memorandum is provided. The highlights are as follows:… Continue Reading

NLRB Rules that Attack on Safety of Employer’s Products is Protected Employee Concerted Activity

Posted in Labor
As previously discussed on the Employment Law Alert, the National Labor Relations Board has taken several pro-union actions and issued many pro-union decisions over the last few years that impact union and non-union businesses alike, which recently include issuing the latest “quickie” election rule and increasing protections afforded to union-related communications made through companies’ e-mail systems. In MikLin Enterprises, Inc., d/b/a Jimmy John’s, the Board rendered another pro-union decision, a decision which serves to remind all employers to be mindful of the NLRB when considering employee discipline for disloyalty when the allegedly disloyal acts relate to employee dissatisfaction with working conditions.… Continue Reading

NLRB General Counsel Issues Memorandum Addressing New Arbitral Deference Standard

Posted in Labor
The National Labor Relations Board’s General Counsel recently issued a memorandum providing guidance regarding the amount of deference the Board should afford arbitrations and settlements resolving unfair labor practice (ULP) allegations under sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA). These sections prohibit interference with employees' rights to engage in protected concerted activities (8(a)(1)) and discrimination against employees for union affiliation (8(a)(3)). The General Counsel’s memorandum was issued to provide guidance in light of the NLRB’s recent decision in Babcock & Wilcox Constr. Co. — a decision that altered decades’ old law by giving the Board greater discretion (1) to initially decide these types of ULP allegations, which had previously been subject to arbitration in the first instance, and (2) to review arbitration decisions concerning such ULP charges. Companies that are negotiating collective bargaining agreements or have such agreements in place and that prefer to arbitrate ULP claims rather than litigate them before the NLRB, should carefully review the General’s Counsel’s memorandum—as should companies settling ULP allegations, as the memorandum deals with settlements as well.… Continue Reading

Businesses Look to Slam Brakes on “Quickie” Election Rule

Posted in Labor
The United States Chamber of Commerce, Coalition for a Democratic Workplace, National Association of Manufacturers, and Society for Human Resource Management have filed a lawsuit in federal court against the National Labor Relations Board seeking to enjoin a final “quickie” election rule that the Board issued last month. The rule, which seeks to expedite the union election process, will negatively impact businesses that do not have proactive labor relations programs in place by effectively stripping them of their statutory and constitutional rights to speak to their workers about labor unions before an election. Absent a postponement, injunction, or some legislative action that trumps the rule, the rule will take effect April 15.… Continue Reading

NLRB Rules Employees “Presumptively Permitted” to Use Employer Email Systems for Statutorily Protected Communications

Posted in Labor
On December 11, 2014, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091532, and 21-RC-091584, the National Labor Relations Board (the “Board” or “NLRB”) held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”… Continue Reading

Changes to FLSA Overtime Exemption for Domestic Service Workers are Coming

Posted in Labor, Wage & Hour
Effective January 1, 2015, the Fair Labor Standards Act overtime exemption for “domestic service workers” will change, having significant ramifications for employers of these employees. Until this change, domestic service workers generally have been exempt from overtime compensation, which means they need not be paid at the rate of time and a half for hours worked in excess of 40 per workweek. The U.S. Department of Labor has issued a Fact Sheet to summarize the changes.… Continue Reading

Supreme Court Finds President’s NLRB “Recess” Appointments Unconstitutional

Posted in Labor
On June 26, 2014, in NLRB v. Noel Canning, the Supreme Court of the United States unanimously decided that President Obama’s purported “recess” appointments of National Labor Relations Board members on January 4, 2012 violated the Constitution because the Senate was not on a break of “sufficient length” when the President appointed them, and thus the President could not dispense with Senate consent of the appointments. The decision calls into question hundreds of NLRB rulings between January 4, 2012 and August 7, 2013, when a new Board was finally sworn in with Senate approval of the President’s appointments. Those rulings include numerous pro-union decisions dealing with dues checkoff clauses, confidentiality policies and practices, employee social media activities, conduct during bargaining unit elections and workplace investigations. More globally, the decision ends an arduous debate as to the meaning of the words “[v]acancies that may happen during the Recess” in the Constitution’s Recess Appointments Clause.… Continue Reading

College Football Players Can Unionize Says NLRB Regional Director

Posted in Labor
Did you know that college football players are not “primarily students”? Well, not if the students are football players on regimented schedules, who receive grant-in-aid scholarships to play football from which their school profits, according to a Regional Director at the National Labor Relations Board. In a decision issued yesterday, the Regional Director concluded that Northwestern University football players who receive scholarships are statutory employees under the National Labor Relations Act, and, therefore, directed an election for the players to decide whether to unionize in light of a petition a union recently filed to represent them. The Regional Director relied upon the common law definition of an employee in rendering his decision, finding that: the school’s interest in the students initially stems from their football talents; letters the University sends them offering scholarships to play football (called tenders) are contracts; the school controls the players through rules and regimented workout and playing schedules; and the scholarships the players receive are compensation that cover living expenses. The Regional Director distinguished the case from Board precedent finding that graduate students are not statutory employees, by reasoning that football is unrelated to the students’ academics unlike the case involving the graduate students.… Continue Reading

NLRB to Revisit “Quickie” Election Rule

Posted in Labor
As if the groundhog's recent proclamation of six more weeks of winter were not bad enough, the National Labor Relations Board announced yesterday that it again is proposing a rule that could expedite the union election process. The proposed "quickie" election rule is identical to a rule the Board proposed in June 2011 and (once again) is open to a 60-day public comment period. The Board will consider comments to the prior rule in addition to those it receives by April 7, 2014. Replies to the comments are due a week later on April 14, 2014.… Continue Reading

NLRB Accepts Rejection of its Union Poster Rule

Posted in Labor
Yesterday, the National Labor Relations Board announced it would not challenge two decisions by United States Courts of Appeals that struck down a Board rule requiring private sector employers to post a notice about employee rights to unionize. As previously reported, the NLRB issued the rule over two years ago, but decided to postpone it indefinitely due to legal challenges by business groups. Yesterday's announcement signifies the Board's acceptance that the rule is unenforceable, and accordingly, private sector employers have no legal obligation to post the notice.… Continue Reading

NLRB Judge Finds Class Waiver Provision in Mandatory Arbitration Agreement Violates NLRA

Posted in Labor
Last week, a National Labor Relations Board Administrative Law Judge (the "ALJ") found that a Missouri cellphone retailer violated the National Labor Relations Act (the "NLRA") by requiring, as a condition of employment, its sales representative employees to enter into arbitration agreements mandating that all employment disputes be subject to individual arbitration. In doing so, the ALJ rejected the employer's argument that the Supreme Court's recent decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), supported enforcement of the arbitration agreement. In American Express Co., the Court held that class action waivers in arbitration agreements are enforceable under the Federal Arbitration Act ("FAA"), even when the plaintiff's cost of individually arbitrating a federal statutory claim is prohibitively expensive.… Continue Reading

NLRB Has Five Board Members for First Time in a Decade

Posted in Labor
On Monday, the National Labor Relations Board announced that the Senate has filled all five of its Board Member seats for the first time since August 21, 2003. Moving forward, this ends the debate as to whether the Board has the constitutional authority to take action, such as issuing decisions, so long as three of these Senate-confirmed members are present when the Board takes action.… Continue Reading

Supreme Court Will Decide Whether President’s Purported “Recess” Appointments are Constitutional

Posted in Labor
As predicted, the Supreme Court of the United States announced today that it will address the constitutionality of President Obama's purported "recess" appointments of Members to the National Labor Relations Board. The Supreme Court's decision, which could invalidate hundreds of Board decisions made during the past two years, is expected by July 2014.… Continue Reading

Third Circuit Deems NLRB “Recess Appointments” Unconstitutional

Posted in Labor
On May 16, 2013, in NLRB v. New Vista Nursing & Rehab., a divided panel of the Court of Appeals for the Third Circuit joined the D.C. Circuit in holding that the Recess Appointment Clause of the Constitution allows the President to make "recess appointments" (that is, without the advice and consent of the Senate) only when the Senate is on a formal intersession recess, as opposed to an intra-session break. Both the Third Circuit's decision and the D.C. Circuit's recent decision in Canning v. NLRB (as elaborated upon in Nat'l Ass'n of Mfrs. v. NLRB) arise from actions taken by the National Labor Relations Board (the "Board" or the "NLRB") some of whose members had been appointed during an intra-session break. To summarize: (1) at least three Board members must participate in a Board decision; (2) according to these courts, the Board has not had three validly-appointed Members since August 27, 2011; and (3) although the NLRB has had four sitting Members between April 5, 2010 and August 27, 2011, it has issued some three-Member decisions during this time wherein one decision-maker, Craig Becker, was arguably unconstitutionally-appointed, rendering those decisions invalid. Potentially hundreds of decisions by the Board over the past three years are at risk of being declared invalid.… Continue Reading

‘Required’ Union Poster Unlawful According to D.C. Circuit

Posted in Labor
On May 7, 2013, in Nat'l Ass'n of Mfrs. v. NLRB, the United States Court of Appeals for the District of Columbia decided that a rule implemented by the National Labor Relations Board ("Board" or "NLRB") requiring most private sector employers to post a notice about workers' rights to unionize was invalid. As previously reported, the Board issued the rule almost two years ago, and has repeatedly postponed its effective date pending the outcome of legal challenges to the rule by business groups.… Continue Reading

Third Circuit Finds Private Healthcare Facility and Its Operator to be Single Employer for Liability Under the NLRA

Posted in Labor
In a recent decision, Grane Health Care v. NLRB, the Third Circuit ruled that a private healthcare facility and its operator - in which it has a 99.5% ownership stake and a near complete overlap of company officers - are a single employer subject to the National Labor Relations Act (the "Act" or "NLRA"). Accordingly, the two entities were found to be jointly and severally liable for remedying unfair labor practices committed by either of them.… Continue Reading

NLRB to Ask Supreme Court if Board Members Were Lawfully Appointed

Posted in Labor
Earlier this week, the National Labor Relations Board (the "Board" or the "NLRB") announced it will petition the United States Supreme Court to review Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013). As previously reported, in Canning the Federal Court of Appeals for the District of Columbia held that three appointments of officers to the NLRB by President Obama were unconstitutional because they lacked the "Advice and Consent" of the Senate and were not authorized by the Constitution's so-called Recess Appointments Clause.… Continue Reading

A Friendly Reminder that the NLRB Workplace Posting Requirement Has Been Postponed Indefinitely

Posted in Labor
Now well over a year ago, the National Labor Relations Board (the "Board" or "NLRB") issued a rule requiring most private sector employers to post a notice of employee rights to unionize in their workplaces. The posting requirement was initially to take effect on November 14, 2011. The requirement was postponed, first, until January 31, 2012, and, then again, until April 30, 2012 in light of legal challenges to the rule. Prior to the April 2012 "effective date," the NLRB announced that it would once again postpone the rule--this time indefinitely "until the legal issues are resolved." As recently reported, the Board's great laid plans may go further awry in light of a federal appellate court decision challenging the NLRB's ability to take any further action until at least one more Board Member is lawfully appointed. For answers to questions regarding the posting, or the Boards's current state of affairs, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.… Continue Reading

Federal Appellate Court Deems NLRB Appointments Unconstitutional

Posted in Labor
In a groundbreaking opinion, the District of Columbia Court of Appeals has ruled that three appointments of officers to the National Labor Relations Board (the "Board" or the "NLRB") by President Barrack Obama were unconstitutional because they lacked the "Advice and Consent" of the Senate and were not authorized by the Constitution's so-called Recess Appointments Clause. As a result, the Court vacated the underlying Board decision that gave rise to the appeal, concluding that the NLRB had no authority to issue the decision because only two of its five members were validly appointed. Thus the Board lacked the quorum necessary for it to take action. The ruling has widespread implications for the NLRB as well as the President's overall "recess appointment" powers.… Continue Reading
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