Last month, the National Labor Relations Board (the “NLRB” or “the Board”) reversed standing precedent and held that student assistants at private universities, including both graduate and undergraduate teaching and research assistants, qualify as “employees” under the National Labor Relations Act (“NLRA”) and may accordingly join unions to collectively bargain with their employers.  The case, Columbia University, 364 NLRB 90 (2016), offers yet another indication of the strength of the Board’s commitment to maintaining and expanding its presence in a rapidly changing employment environment – and its willingness to overrule itself to do so
Continue Reading NLRB Allows Student Assistants to Unionize, Signals Commitment to Expanding Its Reach

On May 26, 2016, in the matter of Lewis v. Epic Systems Corporation, the U.S. Court of Appeals for the Seventh Circuit held that an arbitration agreement, which required employees to submit to individual arbitration for any wage and hour claims against the company, violates the National Labor Relations Act (“NLRA”) and is unenforceable under the Federal Arbitration Act (“FAA”).  In issuing this decision, the Seventh Circuit gave credence to the National Labor Relations Board’s (“NLRB”) decision in D. R. Horton and, in doing so, has created a split amongst U.S. Circuit Courts of Appeal regarding the enforceability of arbitration agreements that preclude class actions.
Continue Reading Seventh Circuit Holds Class Action Waivers are Unlawful and Unenforceable Creating a Circuit Split

In December 2014, the National Labor Relations Board (“NLRB”) announced new rules governing “Representation—Case Procedures.”  The new rules—set to take effect in just under a month, on April 14, 2015—have been commonly referred to as “quickie” or “ambush” election rules, as they will significantly increase the speed at which the union election process moves.  The Republican-led Congress has been working to block the new rules from taking effect, but the expectation is that even if such a bill passes both the House and the Senate, it is likely to be met with a Presidential veto.  Legal challenges to the new rules are also pending in federal courts, including one lawsuit by the U.S. Chamber of Commerce and other trade organizations in the U.S. District Court for Washington D.C. (Case No. 1:15-cv-9), and another by a group of trade associations in U.S. District Court for the Western District of Texas (Case No. 1:15-cv-26).  As of this writing, however, no court has acted to stop or delay implementation of the rules, and although motions for summary judgment are pending in both cases, no hearings have been set and it is not clear when either Court will rule on the respective motions.  At this point, employers should operate under the assumption that the new rules will indeed take effect on April 14, 2015.
Continue Reading NLRB “Quickie Election” Rule Accelerates the Union Organizing Process

Overturning existing precedent, the NLRB has ruled that certain employees have a right to use employer email systems for protected communications, unless special circumstances exist. This decision potentially has far-reaching implications and all employers who allow employees to access their email systems should promptly review their policies and practices in light of this decision.
Continue Reading Employers Beware! Employees are Permitted to Use Employer’s Email Systems for Non Work Purposes, Including Union Organizing

The rights of employees under Section 7 of the National Labor Relations Act have been given quite the digital treatment over the last few years.  In its newest decision issued on December 11, 2014, the National Labor Relations Board ruled 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.”  The full decision can be found here.
Continue Reading An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes

In Bearden v. U.S. Borax, Inc., a California Court of Appeal was asked to decide the validity of a provision in the Industrial Welfare Commission’s Wage Orders that exempts employees covered by a collective bargaining agreement from California’s meal period rules. The court held the provision conflicted with the meal period statute and was therefore invalid.


Continue Reading California Wage Order Provision Exempting Employees Covered By Collective Bargaining Agreements From Meal Period Rules Found Invalid