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Bianca Rodriguez is an associate in the Labor and Employment Practice Group in the firm's San Francisco office.

On March 8, 2024, a federal judge in the United States District Court for the Eastern District of Texas dealt a serious blow to the National Labor Relations Board’s (the “Board”) efforts to further increase the reach of the National Labor Relations Act (“the NLRA”). Judge J. Campbell Barker struck down a final rule issued by the Board that would have drastically broadened the standard the Board applies to determine when employers are joint-employers for the purposes of federal labor law. The blow was delivered three days before the rule was set to take effect on March 11, 2024 following a 14-day stay order also issued by Judge Barker. Continue Reading Federal Judge’s Decision Deals Serious Blow to NLRB’s Joint Employer Rule and Continued Efforts to Expand Who Constitutes an Employer Under the NLRA

On May 14, 2024, the United States District Court for the District of Massachusetts granted a petition for interim injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA”) that was filed by the Regional Director for Region One. Among other things, the court’s order required I.N.S.A, a cannabis company (the “Employer”) to: 1) immediately recognize and bargain collectively with United Food and Commercial Workers International Union, Local 1445 (the “Union”) as the collective bargaining representative of its employees even though a majority of workers voted against unionizing; and 2) rehire two pro-union employees who were terminated during the organizing campaign.Continue Reading U.S. District Court Grants 10(j) Injunctive Relief and Requires Employer to Bargain With Union That Lost Secret Ballot Election

On April 26, 2024, Ctrl Alt Destroy, Inc. (“CAD”), a California Corporation and cannabis licensee filed a lawsuit against Nicole Elliott in her official capacity as Director of the State of California’s Department of Cannabis Control (“DCC”) and Rob Bonta in his official capacity as Attorney General of the State of California, seeking declaratory and injunctive relief alleging that California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) is unconstitutional under the Fifth and Fourteenth Amendments to the US Constitution and is preempted by the National Labor Relations Act (“NLRA”).Continue Reading Cannabis Operator Challenges California State Statute and Regulations Requiring Labor Peace Agreements

On October 26, 2023, the National Labor Relations Board (the “Board”) released a final rule which vastly broadens the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”) and makes it easier for the Board to find a joint employer relationship. This updated standard rescinds and replaces the prior standard under the 2020 final rule, discussed in our blogs here and here. The new final rule makes three key changes:Continue Reading Who’s a Joint Employer Now? New NLRB Rule Drastically Expands Joint Employer Definition

On August 30, 2023, the National Labor Relations Board (the “Board”) released a pair of decisions: Wendt Corporation, 372 NLRB No. 135 (2023) and Tecnocap, LLC, 372NLRB No. 136 (2023), overruling different aspects of the 2017 decision in Raytheon Network Centric Systems, 365 NLRB No. 61 (2017).[1] According to the Board, it reaffirmed and preserved the long-standing principles of the defense of past practice that employers have utilized to escape a finding of a violation of 8(a)(5) of the National Labor Relations Act (the “Act”) when they have implemented unilateral changes to the terms and conditions of employment for employees who are represented by a union.Continue Reading Pair of Board Decisions Significantly Limit Employers’ Power to Act Unilaterally and Past Practice Defense

At the end of last week, the National Labor Relations Board (the “Board”) issued two huge blows to employers that give significant advantages to unions and ease their ability to achieve status as a certified bargaining representative. Continue Reading Newly Created NLRB Rules Drastically Change the Process for Unions Seeking Recognition of Most Private Sector Employees in the U.S. and Substantially Limits Employee Voting in Secret-Ballot Election

As we previously reported here, at the beginning of 2023, the Supreme Court heard oral argument on one of the most anticipated labor cases on the high court’s docket in decades to address whether the National Labor Relations Act (“NLRA” or the “Act”) preempts state court lawsuits for tort damages caused by unions during strikes. On June 1, 2023, the Supreme Court issued its decision in Glacier Northwest, Inc., dba Calportland v. International Brotherhood of Teamsters Local Union No. 174, U.S., No. 21 – 1449, reversing the Washington Supreme Court’s decision and held that the employer’s state law tort claims were not preempted by the Act.Continue Reading SCOTUS Issues Decision Allowing State Court Lawsuit Against Union for Property Damage Caused During Labor Dispute

On June 13, 2023, the National Labor Relations Board (the “Board” or “NLRB”) overturned another business-friendly Board decision in favor of a return to a more employee-favorable standard for determining if a worker is an employee or an independent contractor under the National Labor Relations Act (“NLRA”). Independent contractors are exempt from the rights and protections of the NLRA, including the right to form and join unions.Continue Reading NLRB Overturns Standard for Independent Contractor Status Under the NLRA

On March 22, 2023 Jennifer Abruzzo, General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or the “Board”) issued a memorandum intended to assist the Regions in responding to inquiries regarding the Board decision in McLaren Macomb, 372 NLRB No. 58 (2023).Continue Reading NLRB General Counsel Releases Memo Concerning Confidentiality and Non-Disparagement Clauses in Severance Agreements Post-McLaren

The new year begins with one of the most anticipated labor cases on the high court’s docket in decades. On January 10, 2023, the U.S. Supreme Court heard oral argument in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174 to decide whether the National Labor Relations Act (“NLRA” or the “Act”) preempts state court lawsuits for tort damages caused by unions during strikes. Employers should gain much greater clarity into whether they can seek relief from such conduct via a damages lawsuit. If the U.S. Supreme Court finds that such conduct is not preempted and may be litigated in state court, such a ruling would go far in protecting employers’ interests in contentious labor disputes and potentially shift the balance of power toward employers during these disputes. Continue Reading SCOTUS Hears Oral Argument on Whether NLRA Preempts State Court Lawsuits Against Unions for Property Damage Caused During Labor Disputes

On December 16, 2022, the National Labor Relations Board (“NLRB” or “Board”) abandoned the employer-friendly access standard for off-duty employees of an onsite contractor that was adopted under the Trump Administration in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 368 NLRB No. 46 (2019)(“Bexar County I). Given a chance to revisit the Trump-era standard, the current Board, seeing “no reason to attempt to rehabilitate a standard that fundamentally fails off-duty contractor employees by almost always denying them their right to engage in Section 7 activities at their workplace,” rejected the access standard from Bexar County I and reinstated the previously court-approved (and union advantageous) standard announced in New York New York Hotel & Casino, 356 NLRB 907 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244. See Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 372 NLRB No. 28 (2022) (Bexar County II).Continue Reading NLRB Provides Off-Duty Contractor Employees With Property Access to Engage in Section 7 Activity