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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 employer with its franchisee, using both the current Board standard for joint employer analysis and a recently-proposed, even-more-inclusive standard.  This decision has given franchisors hope that the presumption of joint employment between franchisors and franchisees that has been circulating in a number of recent court and Board decisions is finally starting to weaken.  
Continue Reading NLRB Weighs-In on Franchise Joint Employers

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

Mid-way through 2012, the Hotel Association of New York City and the New York Hotel & Motel Trades Council, AFL-CIO (the “Union”), renewed a seven-year collective bargaining agreement known as the Industry Wide Agreement, or IWA.  While the IWA controls nearly all aspects of the employer-employee relationship for covered hospitality organizations, it does much more and can potentially bind the unsuspecting.  One important part of the agreement which hospitality employers must heed is the “accretion clause,” which has the potential to bind non-signatory parties to the terms of the IWA.  An already powerful document, the renewed IWA increased the reach of the accretion clause to not only signatory corporations and individuals, but also to related companies and entities.  This can complicate an already multi-layered industry whose members often use third-parties to manage or operate their businesses—as well as potentially increase the labor costs exponentially for those businesses.
Continue Reading AFL-CIO’s Industry Wide Agreement May Have Wide Reach in Hospitality Industry

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

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 NLRB Abandons Fight Over Mandatory Workplace Poster Rule

Last month, the United States Court of Appeals for the Fourth Circuit raised the stakes on what has become one of the most prominent topics in the labor law community in recent times with its 2-1 decision in National Labor Relations Board v. Enterprise Leasing Co. SE, LLC, 2013 WL 3722388 (4th Cir. July 17, 2013). Taking up a topic recently examined by the Courts of Appeal for the D.C. Circuit and the Third Circuit, the Fourth Circuit held that President Barack Obama’s appointment of three members to the five-person National Labor Relations Board (the “NLRB”) on January 4, 2012 (previously discussed here) was unconstitutional. This means that, according to the Fourth Circuit, the NLRB has been acting without the three-person quorum it is required to have in order to issue valid orders and decisions since January 4, 2012, when the appointment occurred.
Continue Reading Another Circuit Court Finds President’s NLRB Recess Appointments Unconstitutional

While many have been enjoying well deserved summer vacations, the National Labor Relations Board (“NLRB”) has been busy. In the past two weeks the NLRB has issued decisions regarding investigative confidentiality directives and the permissible scope of the well-recognized “at-will” statement.
Continue Reading Recent Notable National Labor Relations Board Decisions

Last week, in an effort to increase its presence and exposure in the workplace, the National Labor Relations Board (“NLRB”) launched a new webpage to define and provide specific examples of what it considers “concerted activity.” As you may be aware, the National Labor Relations Act’s (“NLRA”) Section 7 provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”
Continue Reading NLRB Launches New Website Regarding Concerted Activity

By Gregg Fisch and Jenny Chang

On January 4, 2012, President Obama used his recess powers to appoint three members to the National Labor Relations Board (“NLRB” or “Board”). These appointments were made one day after the NLRB lost a quorum on its five-seat board following the expiration of the 2010 recess appointment of NLRB Member (and former top lawyer with the SEIU and AFL-CIO) Craig Becker. Under the Supreme Court’s 2010 decision in New Process Steel, L.P. v. NLRB, the Board must have a quorum of three members to decide cases and issue enforceable decisions. These new recess appointments restored the Board’s quorum, thereby avoiding a shutdown of the Board’s operations.Continue Reading President Obama Appoints Three to NLRB During Purported Congressional “Recess”