Category Archives: National Labor Relations Act

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Striking A New Balance – The NLRB Abandons the Lutheran Heritage Test and Devises a New Standard for Assessing the Facial Validity of Neutral Work Rules

In 2004, the National Labor Relations Board (NLRB) issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”), and held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees would reasonably construe the rule to prohibit union and other protected concerted activity (Section 7 … Continue Reading

NLRB Overrules Browning-Ferris Joint Employer Standard

Yesterday, the National Labor Relations Board (“Board”) overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) and returned to the pre-BFI standard that governed joint employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017) (“Hy-Brand”). The BFI decision set forth a broad definition of “joint employer,” imposing liability and requiring bargaining in … Continue Reading

New Labor Board May Kill “Quickie Election” Rule; Requests Public RFI

The NLRB announced yesterday, a Request for Information (“RFI”) on the Board’s 2014 “Quickie Election” representation regulations (at 29 CFR parts 101 and 102). The RFI seeks input on the amendments to representation case procedures, which drastically changed the process for NLRB conducted elections in which employees vote on whether they want to be represented … Continue Reading

New Labor Board GC Signals Overturning Obama-Era Rulings, But Anticipated Vacancies and Recusals Create Uncertainty

On November 8, 2017, Peter B. Robb was sworn in as the General Counsel (GC) of the NLRB for a four year term. Robb succeeds Richard Griffin, who has been the GC since November 2013. Robb wasted no time in taking initial steps to undo many of the NLRB’s more controversial recent decisions. On December … Continue Reading

House Approves Save Local Business Act – Bill To Overturn Controversial Joint Employer Ruling

Yesterday evening, the U.S. House of Representatives passed the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. The bill advanced to the Senate by a 242-181 vote. For more information on the bill, see our … Continue Reading

Labor Relations Update: New NLRB General Counsel Nominee Poised to Undo Obama-Era Precedents

Senate Republicans recently confirmed William Emanuel, the second Trump nominee to the five-member National Labor Relations Board (the “Board”), giving the Board a Republican majority for the first time since 2007. Mr. Emanuel’s confirmation follows the September 25, 2017 appointment of Peter Robb, a management-side labor and employment lawyer, as General Counsel of the Board. Each … Continue Reading

Committee Approves Save Local Business Act – Redefining Joint Employer Liability

Yesterday, the U.S. House Committee on Education and the Workforce approved the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. The bill was approved by a vote of 23 to 17. The bill currently has … Continue Reading

Save Local Business Act Introduced in the House

The House Education and the Workforce Committee held a joint subcommittee hearing last week to analyze the “Save Local Business Act” (H.R. 3441 – Byrne), a measure that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. If passed, the Act would reverse the current “Browning-Ferris” … Continue Reading

Congress Considers National Right-To-Work Bill: Beginning of the End for Unions?

Organized labor in the United States has experienced a steady decline in the last several decades, from a peak union membership rate of 35% during the mid-1950s to 10.7% in the year 2016.  For the private sector, the decline has been even more precipitous:  a mere 6.4% of private sector workers in the U.S. were … Continue Reading

National Labor Relations Board Issues Yet Another Decision Finding An Employer’s Work Rules Overly Broad

The National Labor Relations Board (“Board”) recently issued a decision that serves as a reminder for both union and non-union employers that the Board continues to take an aggressive stance on seemingly innocuous employment policies that the Board believes may chill an employee’s exercise of his or her Section 7 rights under the National Labor … Continue Reading

NLRB Allows Student Assistants to Unionize, Signals Commitment to Expanding Its Reach

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, … Continue Reading

NLRB Releases Advice Memorandum Affirming Misclassification Constitutes Unfair Labor Practice

At the end August, the National Labor Relations Board released an advice memorandum, originally drafted in December 2015, concluding that a group of drivers who worked for a drayage company called Pacific 9 Transportation were misclassified as independent contractors and that this misclassification constituted a violation of the National Labor Relations Act. This advice memorandum … Continue Reading

Ninth Circuit Invalidates Arbitration Agreement

On August 22, 2016, the Ninth Circuit joined the Seventh Circuit in the split amongst U.S. Circuit Courts of Appeal on the issue of enforceability of employment arbitration agreements precluding class actions. The Ninth Circuit, similar to the Seventh Circuit in Lewis v. Epic Sys. Corp., held in 2-1 decision that an employer violates the … Continue Reading

NLRB Finds Increased Use of Joint Employees Justifies Removal of Barriers to Organization

On July 11, 2016, the National Labor Relations Board (the “NLRB” or “the Board”) upended more than a decade of precedent and held that a single bargaining unit may be comprised of an employer’s direct hires and the temporary workers provided by a “joint employer” without prior consent from either employer.  In the case, Miller … Continue Reading

Seventh Circuit Holds Class Action Waivers are Unlawful and Unenforceable Creating a Circuit Split

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 … Continue Reading

Non-Union Employee’s “Bad Attitude” Protected by the NLRA

As a reminder that non-union employees are also protected by the National Labor Relations Act (NLRA), the Seventh Circuit Court of Appeals in Chicago recently upheld a National Labor Relations Board (NLRB) decision holding that Staffing Network Holdings, LLC (“Staffing Network”) violated the NLRA by twice threatening non-union employees with discharge for engaging in protected, … Continue Reading

Second Circuit Holds That Facebook “Like” May Be Concerted Activity Under Section 7 of the NLRA

The Second Circuit recently released a summary order in Three D, LLC v. NLRB affirming the National Labor Relations Board’s (the Board) ruling that a Facebook “like” can be construed as concerted activity under Section 7 of the National Labor Relations Act (the Act).… Continue Reading

NLRB Broadens its Test for Determining Joint-Employer Status

On August 27, 2015, the National Labor Relations Board (“NLRB”) issued its highly anticipated decision in Browning-Ferris Indus. of California, et al. v. Sanitary Truck Drivers, 362 NLRB No. 186. In deciding to “revisit and revise” its joint-employer standard, the NLRB held in a 3-2 decision that Browning Ferris (BFI) was a joint employer of … Continue Reading

NLRB Weighs-In on Franchise Joint Employers

In late April, the National Labor Relations Board (“NLRB” or the “Board”) General Counsel’s office issued an Advice Memorandum (“Advice Memo”) (No. 177-1650-0100, available here) addressing whether a franchisor (Freshii Development, LLC) was a joint employer with one of its franchisees (Nutritionality, Inc.).  The General Counsel’s office determined that the franchisor was not a joint … Continue Reading

The NLRB’s Changes to Representation Case Procedures

Beginning on April 14, 2015, the National Labor Relations Board’s (“NLRB” or the “Board”) new representation case procedural rules will be applied to all representation petitions filed thereafter.  While the NLRB insists that the new rules “remove unnecessary barriers to the fair and expeditious resolution of representation cases” and “simplify representation-case procedures,” a closer reading … Continue Reading

NLRB “Quickie Election” Rule Accelerates the Union Organizing Process

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 … Continue Reading

Employers Beware! Employees are Permitted to Use Employer’s Email Systems for Non Work Purposes, Including Union Organizing

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

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

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 … Continue Reading

NLRB Abandons Fight Over Mandatory Workplace Poster Rule

For over two years, the National Labor Relations Board (the “Board”) fought to require employers to post in their workplaces a notice of employee rights under the National Labor Relations Act (“NLRA”).  Those efforts met with stiff opposition from employers, and now appear to have come to an end.… Continue Reading
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