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The National Labor Relations Board’s (“NLRB” or Board”) Division of Advice[1] recently released five memos dealing with issues related to the COVID-19 pandemic—concluding in all five that dismissal of the pending unfair labor practice charge (“ULP” or “charge”) against the employer was warranted.  These advice memos come on the heels of a series of advice memos issued by the Division of Advice in July, which also recommended the dismissal of COVID-19-related charges filed against employers.  Although these advice memoranda do not carry the same weight as a Board decision, they shed light on how the regional offices may view these matters going forward and can be used as a roadmap for employers who are undoubtedly navigating similar issues in their businesses during the pandemic.
Continue Reading NLRB Releases More Employer-Friendly COVID Advice

On March 27, 2020, President Trump signed the largest economic stimulus package in American history into law.  Although the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) made several amendments to the Families First Coronavirus Response Act (“FFCRA”), the majority of the amendments were technical corrections that do not impact the substantive provisions of the FFCRA.
Continue Reading The CARES Act: What Employers Need to Know About Its Impact on the Families First Coronavirus Response Act

On March 18, 2020, shortly after it was passed in the Senate by a vote of 90-8, President Trump signed H.R. 6201, the Families First Coronavirus Act (the “Act”) into law.

There are two paid leave provisions of the Act that employers with fewer than 500 employees should be aware of: (1) the Emergency Family and Medical Leave Expansion Act; and (2) the Emergency Paid Sick Leave Act.  The Act also provides, among other things, $1 billion in grants to states for emergency unemployment insurance and refundable tax credits for employers providing paid emergency sick leave or paid FMLA.  Further, for those who have been closely following the trajectory of this bill, it is worth noting that there are key differences as highlighted below between the original version of the bill passed by the House on March 14 and the final law, which are the result of several “corrections” that the House made to the bill on March 16 before sending it to the Senate.
Continue Reading What Employers Need to Know About the Newly-Enacted Families First Coronavirus Act

On March 14, 2020, the House of Representatives voted 363-40 to pass H.R. 6201: Families First Coronavirus Response Act—a relief package that, among other things, contains several provisions affecting employers.  The Senate has not yet scheduled a time to vote on the bill, although it is expected that a vote will occur this week.
Continue Reading What Employers Need to Know About H.R. 6201: The Families First Coronavirus Response Act

Resolving a circuit split regarding the jurisdictional nature of Title VII’s charge-filing requirement—the statutory requirement that an employee who alleges that he or she has been subjected to unlawful treatment is required to file a charge with the Equal Employment Opportunity Commission (“EEOC”), or an equivalent state or local agency, prior to bringing suit in court—the United States Supreme Court issued a unanimous opinion on June 3, 2019, penned by Justice Ginsburg, holding that “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.” This decision—which affirms a recent Fifth Circuit decision, is consistent with rulings from the First, Second, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits, but overrules Fourth and Tenth Circuit precedent—has potentially significant implications for unwary employers when defending themselves in a Title VII lawsuit.
Continue Reading Supreme Court Rules That Employers Can Be Forced To Defend Against Actions Under Title VII Not Properly Brought Before the EEOC

On April 29, 2019, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) issued Memorandum GC 19-06, which provides guidance to the Board’s regional offices on how to handle cases involving Beck objectors and how to allocate secondary expenses related to union lobbying activity after the Board’s March 1, 2019 decision in United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (2019). In Communications Workers of America v. Beck, the Supreme Court held that a union cannot use agency fees collected from a non-member employee—that is, an employee subject to a union security clause but who chooses not to be represented by the union—on activities unrelated to collective bargaining, contract administration, or grievance adjustment if the non-member employee objects to such an expenditure (a so-called “Beck objector”). 487 U.S. 735 (1998). As we recently explained in our March 2019 post covering Kent Hospital, the Board further limited the permissible uses of agency fees by ruling that lobbying costs incurred by a union fall outside the scope of a union’s statutory duties as the exclusive bargaining representative of non-member employees.
Continue Reading No Evidence? No Problem! National Labor Relations Board’s General Counsel Memorandum Eases Burden On Beck Objectors Following Board’s Decision in Kent Hospital

On March 1, 2019, the National Labor Relations Board (“Board”), in a 3-1 decision, ruled that Beck objectors cannot be required to financially support the lobbying efforts of unions because lobbying costs are not chargeable as incurred during a union’s performance of statutory duties as the objectors’ exclusive bargaining agent. United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (2019). This decision comes six years after the Board’s first ruling in this case—a ruling in which the Board found that lobbying expenses can be chargeable to Beck objectors under certain circumstances (which was later vacated by the Supreme Court’s 2014 Noel Canning decision)—and represents the Board’s most recent effort to closely scrutinize the dues charged by unions: recall, for example, the Board’s decision in Teamsters Local 75 (Schreiber Foods), 365 NLRB No. 48 (2017), in which the Board held that Teamsters Local 75 violated the National Labor Relations Act (“Act”) for failing to provide sufficient information to Beck objectors regarding how it calculated the chargeability and non-chargeability of its own dues expenditures, as well as sufficient information about how it determined the chargeability and non-chargeability of the per capita dues paid to affiliated entities.
Continue Reading I’m Not Paying for That! National Labor Relations Board Increases Rights of Beck Objectors and Further Limits the Activities Unions Can Fund Through Dues Collections

In a business-friendly decision issued on January 25, 2019, the National Labor Relations Board (“NLRB” or “Board”) revised its test for determining whether putative independent contractors are exempt from coverage under the National Labor Relations Act (“NLRA”). See SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019) (“SuperShuttle”). The Board’s SuperShuttle decision affirmed a 2010 Acting Regional Director’s decision that a group of franchisee airport shuttle operators were independent contractors. In the process, the Board overturned FedEx Home Delivery, 361 NLRB 610 (2014) (“FedEx”), an Obama-era decision that, according to the SuperShuttle Board, “significantly limited the importance of entrepreneurial opportunity” to the NLRB’s independent contractor test. Given this new development, employers should expect that, at least under the NLRA, it will be easier than before to show that a worker should be classified as an independent contractor (instead of an employee).
Continue Reading National Labor Relations Board Issues Decision Overruling Obama-Era Independent Contractor Test: What This Means For (Putative) Employers

On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access to their employer’s e-mail system have a right to use that e-mail system during non-working time for union organizing and other activities protected under Section 7 of the National Labor Relations Act (“Act”). The decision in Purple Communications overruled the standard set out in the Board’s 2007 Register Guard decision, where the Board held that employers may lawfully impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity.
Continue Reading National Labor Relations Board Signals That It May Leave Purple Communications Black and Blue

On July 10, 2018, the National Labor Relations Board (“NLRB” or “Board”) announced the start of a new pilot program to increase participation in its Alternative Dispute Resolution (“ADR”) program. Established in 2005, the Board’s ADR program provides free mediation services to parties who wish to attempt to settle cases that are pending before the Board through the use of a mediator from the Federal Mediation and Conciliation Service or the ADR program director. It is the Board’s position that the ADR program provides parties with greater control over their cases and more “creative, flexible, and customized settlements,” and will save the parties time and money. A settlement is reached in approximately 60% of the cases that participate in the ADR program, and the Board has always approved the settlement reached between the parties. However, regardless of the purported benefits of the ADR program and its “proven track record,” the Board’s Office of the General Counsel stated in its October 15, 2015 Memorandum OM 16-02 that “many cases that are excellent candidates for the program are not brought to the program by counsel for respondent or the General Counsel.”
Continue Reading National Labor Relations Board Seeks To Increase Participation in Alternative Dispute Resolution Program With New Pilot Program

On June 6, 2018, the National Labor Relations Board’s (“NLRB” or “Board”) General Counsel issued Memorandum GC 18-04 (“GC 18-04”), which provides guidance to employers on the legality of certain handbook rules following the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).  By way of background, in 2004, the Board issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) if employees would “reasonably construe” the rule to prohibit protected concerted activity under Section 7 of the NLRA.  The Lutheran Heritage test gave no consideration to the employer’s stated justifications for implementing the rule, and produced arbitrary and oftentimes nonsensical Board decisions that appeared to hinge on what the then-Board majority believed an employee may think about a particular rule. In Boeing, the Board overruled the “reasonably construe” standard announced in Lutheran Heritage and issued a new test that balanced the impact a reasonably interpreted, facially neutral rule may have on employees’ Section 7 rights with the employer’s business justifications for the rule.  The Board noted that work rules will likely fall into three categories: Category 1 rules, which will include rules that the Board deems to be facially lawful; Category 2 rules, which will require individualized scrutiny to determine if the rules are lawful; and Category 3 rules, which will be rules designated by the Board as unlawful.  A more detailed discussion of the Boeing case is available here.
Continue Reading National Labor Relations Board’s General Counsel Releases Memorandum Providing Guidance On Handbook Rules After Its December 2017 Boeing Decision