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.
NLRB Adopts Volatile New Standard for Evaluating Work Rules
On August 2, 2023, the National Labor Relations Board (the “NLRB” or “Board”) issued its decision in Stericycle Inc., 372 NLRB No. 113 (2023) (“Stericycle”) overruling the standards established in The Boeing Company, 365 NLRB No. 154 (2017) (“Boeing”) and LA Specialty Produce Co., 368 NLRB No. 93 (2019) (“LA Specialty Produce”) for determining whether facially neutral work rules violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The standard the Board sets forth in Stericycle applies to union and non-union workplaces and goes far further than simply overruling cases decided during the Trump Administration. Under the new standard, a work rule is presumptively unlawful if it has a reasonable tendency to chill employees from exercising their rights when viewed from the perspective of the reasonable employee, even if a contrary interpretation of the rule is also reasonable. Once established, the employer must prove that 1) the rule advances a legitimate and substantial business interest, and 2) that the employer is unable to advance that interest with a more narrowly tailored rule.
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California Mandates COVID-19 Supplemental Paid Sick Leave for Food Sector Workers
On April 16, 2020, Governor Newsom signed Executive Order N-51-20 (the “Order”), which requires hiring entities to provide up to 80 hours of supplemental paid sick leave to food sector workers for reasons related to COVID-19.
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California Statewide Stay at Home Order: What Employers Need to Know
On March 19, 2020, California Governor Gavin Newsom issued a mandatory “stay-at-home” order, directing all California residents to stay home or at their place of residence. This order has taken immediate effect and is in place until further notice.
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First Day on the Job and on Notice: When the Statute of Limitations Begins for Employer Background Checks
Employers began to rethink how they obtain authorization and retrieve background and credit checks for new employees after the Ninth Circuit’s decision in Gilberg v. California Check Cashing Stores, LLC, 913 F.3d 1169, 1177 (9th Cir. 2019), as we’ve previously discussed. However, lower California courts recently decided other issues surrounding background checks, such as the amount of time employees have to file a claim. These recent rulings suggest that the statute of limitations for an employee to file a claim for an alleged violation of federal and/or state background and credit checks laws can begin on the employee’s first day of work.
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U.S. Supreme Court to Decide Class Action Waiver Divide
On January 13, 2017, the United States Supreme Court consolidated and granted review of the three following cases involving the legality of arbitration agreements which contain class action waivers: National Labor Relations Board v. Murphy Oil USA, Inc., from the 5th Circuit, Epic Systems Corp. v. Lewis, from the 7th Circuit, and Ernst & Young LLP v. Morris, from the 9th Circuit.
The NLRB, most notably with its 2012 decision in D.R. Horton, has routinely held that arbitration agreements containing class action waivers violate employees’ rights under the National Labor Relations Act (“NLRA”). The courts, however, have taken a variety of stances on the issue, and these three cases present the Supreme Court with an opportunity to resolve an issue that has divided the Circuits.
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Supreme Court Holds That Rest Periods Must Be Free From Duties And Employer Control
On December 22, 2016, the California Supreme Court issued a critical decision in Augustus v. ABM Security Services, Inc., 2016 D.J. 12608 (2016), relating to California’s rest period obligations. The California Supreme Court declared that state law prohibits on-duty and on-call rest periods. It stated that employers must (1) relieve their employees of all duties during rest periods and (2) relinquish any control over how employees spend their break time. However, the decision did not end there. The California Supreme Court examined a number of related considerations, including the practical limitations created by a ten-minute rest period, policies that place restrictions on employees during rest periods, the circumstances under which premium payments may be due for missed rest periods, and the possibility of rescheduling or restarting rest periods when they cannot be provided or are interrupted.
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Unpersuasive: Federal Judge Invalidates DOL’s New Persuader Rule
On November 16, 2016, a federal district judge in Texas barred the Department of Labor (“DOL”) from enforcing its new so-called “Persuader Rule.” The rule, which would have imposed broad disclosure requirements on employers responding to union-organizing campaigns, has been mired in controversy since it was proposed in 2011. In April 2016, Sheppard Mullin wrote about the changes the final rule would have made; in June, we covered a proposed carve-out for legacy agreements between employers and third-party advisors.
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New OSHA Requirements for Employee Involvement and Employer Recordkeeping Take Effect Over the Next Two Months
Earlier this year, the Occupational Safety and Health Administration (OSHA) issued its final rule to Improve Tracking of Workplace Injuries and Illnesses. The new rule has two components – one relating to employee involvement, which takes effect on December 1, 2016, and the other relating to employer recordkeeping, which will be effective January 1, 2017.
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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 National Labor Relations Act (NLRA) when it requires employees to sign an agreement precluding them from pursuing, in any forum, wage-and-hour claims against the employer on a collective basis. To the contrary, the Fifth Circuit has upheld such arbitration agreements in D.R. Horton, Inc. v. NLRB and Murphy Oil USA, Inc. v. NLRB, finding that class action waivers do not violate the NLRA.
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Legacy and Grandfathered Agreements are Not Subject to Disclosure Requirements Under the Department of Labor’s New “Persuader” Regulations and Interpretation of the “Advice” Exemption
On March 24, 2016, the U.S. Department of Labor’s (“USDOL”) Office of Labor-Management Standards (“OLMS”) published its highly controversial “persuader” regulation, which requires employers and labor relations consultants, including legal counsel, to publicly disclose relationships that have traditionally been permitted to remain confidential under the Labor-Management Reporting and Disclosure Act (“LMRDA”). Although the new persuader regulations took effect on April 25, 2016, the new rule will not apply to agreements entered into before July 1, 2016. This presents an invaluable opportunity for employers and their labor consultants to be “grandfathered” out of much of the required reporting under the new regulations.
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