On June 27, 2016, in National Federation of Independent Business v. Perez, Judge Sam R. Cummings of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction precluding the United States Department of Labor (“DOL”) from enforcing its recently introduced rule interpreting the Labor-Management Reporting and Disclosure Act’s (“LMRDA”) “advice” exemption. 81 Fed. Reg. 15,924 et seq.
In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court of the United States definitively answered the question of whether statistical “representative evidence” may be used in class actions to establish that “questions of law or fact common to class members predominate over any questions affecting only individual members” pursuant to Rule 23(b)(3). According to the Court’s much-anticipated opinion, the answer is yes: “Its permissibility turns not on the form a proceeding takes – be it a class or individual action – but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”
Department of Labor’s New “Persuader” Rule Requires Employers and Labor Relations Consultants to Publicly Disclose Arrangements
On March 24, the United States Department of Labor (“DOL”) published a final rule imposing new reporting requirements under the Labor-Management Reporting and Disclosure Act (“LMRDA”) that could impede employers’ communications with their workers about unions. The rule will take effect on April 25, and will cover arrangements, agreements, and payments between employers and their labor relations consultants – including their attorneys – beginning July 1, 2016.
The National Labor Relations Board (“NLRB”) decided that an employer’s workplace investigations policy, which recommends employees keep an internal investigation confidential, violated the National Labor Relations Act (“NLRA”) because it interfered with employees’ rights to communicate regarding matters affecting terms and conditions of employment. The ruling creates a quandary for employers to maintain effective workplace investigation policies and practices including confidentiality statements in anti-harassment policies.
Recently, in Browning-Ferris Indus. of Cal., the National Labor Relations Board continued to expand its reach and once again altered decades old law in favor of labor unions, this time by making it easier for unions to hold multiple businesses responsible for bargaining with a single group of workers over employment conditions and terms. The decision has potentially far-reaching implications for companies that enter into staffing arrangements with third parties, including franchisors, who now may have legal obligations to bargain with unions where they never before did.
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.
NLRB Judge Strikes Down Employee Handbook Confidentiality Policy — Including Protection of Customer and Vendor Data
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.
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:
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.
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.