Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

Tag Archives: NLRA

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, … Continue Reading

U.S. Supreme Court Clarifies Meaning of “Changing Clothes” Under FLSA

Posted in Wage & Hour
On January 27, 2014, the U.S. Supreme Court issued a unanimous opinion in Sandifer v. United States Steel Corp., which clarified what it means for an employee to be "changing clothes" under Section 3(o) of the Fair Labor Standards Act ("FLSA"). The Court's decision will affect unionized workplaces, where employees change in and out of (or "don and doff") protective or sanitary clothing in connection with their jobs… 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

D.R. Horton Reversed by 5th Circuit

Posted in Alternative Dispute Resolution
On December 3, 2013, the Fifth Circuit Court of Appeals reversed the decision of the National Labor Relations Board (the "Board" or "NLRB") in D.R. Horton, Inc. and held that D.R. Horton's arbitration agreement prohibiting class or collective action claims did not violate the National Labor Relations Act ("NLRA"). In so holding, the court found that the Board did not give proper weight to the Federal Arbitration Act ("FAA")… Continue Reading

A New Jersey Federal Court Holds that the Stored Communications Act Applies to “Wall Posts” on Facebook

Posted in Privacy
The Federal Stored Communications Act, 18 U.S.C. § 2701, et seq. ("SCA"), makes it unlawful to, among other things, "intentionally access[] without authorization a facility through which an electronic communication service is provided." Violators are subject to imprisonment and fines, and the statute expressly authorizes a civil action for damages, injunctive relief and attorneys fees. A federal court in New Jersey has now held that the statute may apply to those who access information posted by a Facebook account holder on his or her Facebook "wall." The defendant-employer in the case, Monmouth-Ocean Hospital Service Corp. ("MONOC"), was able to avoid liability under the SCA because the plaintiff could not establish that her employer violated the "without authorization" component of the statute. Ehling v. Monmouth-Ocean Hospital Service Corp. But the case puts employers on notice that they must tread carefully in this area… 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 … 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

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

Confidentiality and Non-Disparagement Provisions in Employment Agreement Deemed Unlawful by NLRB Judge

Posted in Employment Agreements, Labor
Over the past two years, the National Labor Relations Board (the "Board") has attacked various employment policies of union and non-union employers alike, ranging from social media policies to policies that establish protocol for employees to follow when responding to media inquiries. The Board also has been critical of at-will language commonly found in employee handbooks and policies used by employers throughout the country. In light of the Board's recent actions, some employers--particularly non-union employers that have not historically focused on Board developments--have begun to reassess policy language that has long existed in their handbooks. Due to a recent administrative law judge ("ALJ") decision, employers should add employment agreements to their list of employment practices to review and Board developments to watch in … Continue Reading

NLRB ALJ Strikes (Employer Policies) Again!

Posted in Labor
In a recent decision, a NLRB administrative law judge (the "ALJ") found three policies in the Dish Network's nationally-distributed handbook unlawful: a social media policy, a policy that restricts contact with the media, and a policy that restricts contact with government agencies. While the challenge to the social media policy is nothing new, the decision serves as a reminder for union and non-union employers alike that no policy is safe from scrutiny by the National Labor Relations Board (the "Board" or the "NLRB")… Continue Reading

NLRB’s Third Social Media Report Includes Model Social Media Policy

Posted in Policies/Handbooks
On May 30, 2012, the National Labor Relations Board's Acting General Counsel issued a third report on social media cases. This report follows the Board's August 2011 and January 2012 reports on the subject, which we previously discussed. The guidance contained in the three social media reports is applicable to most private sector employers, unionized or not… Continue Reading

Court Applies the Brakes to “Quickie” Election Rules

Posted in Labor
As previously discussed on the Employment Law Alert, the National Labor Relations Board (the "Board" or the "NLRB") recently implemented a rule that could speed up the union election process and, in turn, leave employers with less time to communicate their positions on unions to employees. Yesterday, the United States District Court for the District of Columbia declared the rule invalid because only two Board members were "present" when the NLRB passed the rule last December. The court explained that the Board did not satisfy the National Labor Relations Act's requirement that the NLRB have a quorum (typically the presence of three Board members) to conduct business when it voted on the rule. "According to Woody Allen, eight percent of life is just showing up," wrote the court. "When it comes to satisfying a quorum requirement, though, showing up is even more important than that."… Continue Reading

“Quickie” Election Procedures Take Effect Today

Posted in Labor
On December 22, 2011, the National Labor Relations Board (the "Board" or the "NLRB") issued another "union-friendly" rule that could speed up the union election process, leaving employers with limited time to respond to a union organizing drive. A pending lawsuit challenging the legality of the new rule is outstanding. Notwithstanding, the rule applies to all newly-filed election petitions effective today as the court has not postponed the rule's effective date despite the ongoing litigation. The court will rule on the legitimacy of the rule by May 15 (before an election could take place under the new rule)… Continue Reading

D.C. Circuit Enjoins NLRB Employee Rights Posting Requirement – Deadline for Compliance Delayed Pending Resolution of Legal Challenges

Posted in Labor
The U.S. Court of Appeals for the D.C. Circuit entered an order yesterday in National Association of Manufacturers v. National Labor Relations Board, enjoining an NLRB posting requirement that would require most private sector companies to post a Notice of Employee Rights under the National Labor Relations Act in their workplaces. The D.C. Circuit ruling came on the heels of the District of South Carolina's opinion last Friday in the Chamber of Commerce v. NLRB case, which held that the NLRB exceeded its authority when it approved the posting requirement… Continue Reading

April 30, 2012 Deadline for Compliance with NLRB Employee Rights Posting Requirement May Be Extended Again

Posted in Labor
As we have previously reported in the Employment Law Alert, an National Labor Relations Board (NLRB) final rule adopted last August requires most private sector employers -- including companies that are not unionized -- to post in their workplaces a Notice of Employee Rights under the National Labor Relations Act. The deadline for employers to comply, which has been extended twice in the wake of lawsuits challenging the Board's authority to issue the rule is currently set for April 30, … Continue Reading
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