Tag Archives: National Labor Relations Act

National Labor Relations Board’s General Counsel Releases Memorandum Providing Guidance On Handbook Rules After Its December 2017 Boeing Decision

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 … Continue Reading

NLRB Confirms That It Intends To Proceed With Rulemaking On Joint Employer Standard

On June 5, 2018, in response to a May 29, 2018 letter from Sen. Elizabeth Warren (D-MA), Sen. Bernard Sanders (I-VT), and Sen. Kirsten Gillibrand (D-NY), National Labor Relations Board (“NLRB” or “Board”) Chairman John Ring confirmed that the NLRB intends to move forward with rulemaking on the joint employer standard and that a Notice … Continue Reading

National Labor Relations Board Deviates from Typical Practice and Announces that It is Considering Rulemaking to Address Joint Employer Standard

On May 9, 2018, the National Labor Relations Board (“NLRB”) announced it is considering rulemaking to address the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”). As Chairman of the NLRB John Ring explained in the NLRB’s press release: “The current uncertainty over the standard to be applied in determining joint-employer … Continue Reading

U.S. Supreme Court Upholds Enforceability of Mandatory Employment Class Action Waivers

On May 21, 2018, the United States Supreme Court upheld the legality of arbitration agreements containing class action waivers. In a 5-4 decision written by Justice Gorsuch, the Court held that arbitration agreements providing for individualized proceedings were valid, and neither the Federal Arbitration Act’s (“FAA”) savings clause, nor the National Labor Relations Act (“NLRA”) suggest otherwise.… Continue Reading

Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of the Board’s Republican majority appointed by President Trump. Ring’s confirmation sets the stage for undoing many Obama-era rulings that have … Continue Reading

Considering Offering Severance Pay in Exchange for Certain Post-Employment Obligations? Think Again.

An employer violated employee’s labor rights by offering her a separation agreement that contained unlawful terms ruled a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) in Baylor Univ. Med. Ctr., Case No. 16-CA-195335 (Fort Worth, TX, February 12, 2018) (“Baylor”). This decision is one of the first ALJ rulings to apply the NLRB’s … Continue Reading

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

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

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

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

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
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