Tag Archives: NLRB

NLRB Issues Proposed Rulemaking on the Joint Employer Standard

The National Labor Relations Board has made good on its recent promise to move forward with rulemaking to re-establish the decades-old joint employer standard in place prior to the Board’s 2015 decision in Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris or BFI), petition for review docketed … Continue Reading

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

NLRB Asks D.C. Circuit to Revive Review of Joint Employer Standard Under BFI; Hy-Brand Decision Vacated Following NLRB Ethics Official’s Report

On March 1, 2018, the Deputy Associate General Counsel for the National Labor Relations Board (“NLRB”) asked the D.C. Circuit to revive its review of the Obama-era Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) joint employer test in light of the Board’s February 27, 2018 decision to vacate Hy-Brand Industrial Contractors, Ltd, 365 NLRB … 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

The End of Union-Dictated Micro-Units: NLRB Overturns Specialty Healthcare

On the eve of Chairman Phillip Miscimarra’s departure from the NLRB, he gave one final gift to employers: the overturning of Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), an Obama-Era Board decision that allowed unions to organize “micro-units” of employees—drastically limiting any challenges employers could have to a petitioned-for unit before … 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

NLRB Overrules Browning-Ferris Joint Employer Standard

Yesterday, the National Labor Relations Board (“Board”) overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) and returned to the pre-BFI standard that governed joint employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017) (“Hy-Brand”). The BFI decision set forth a broad definition of “joint employer,” imposing liability and requiring bargaining in … 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

House Approves Save Local Business Act – Bill To Overturn Controversial Joint Employer Ruling

Yesterday evening, the U.S. House of Representatives passed the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. The bill advanced to the Senate by a 242-181 vote. For more information on the bill, see our … 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

Committee Approves Save Local Business Act – Redefining Joint Employer Liability

Yesterday, the U.S. House Committee on Education and the Workforce approved the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. The bill was approved by a vote of 23 to 17. The bill currently has … Continue Reading

Save Local Business Act Introduced in the House

The House Education and the Workforce Committee held a joint subcommittee hearing last week to analyze the “Save Local Business Act” (H.R. 3441 – Byrne), a measure that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. If passed, the Act would reverse the current “Browning-Ferris” … Continue Reading

Department of Labor Moves To Rescind “Persuader Rule” with Notice of Proposed Rulemaking

On June 12, 2017, the U.S. Department of Labor’s (“DOL”) Office of Labor-Management Standards published a notice of proposed rulemaking regarding its intention to rescind the so-called “persuader rule,” moving the DOL one step closer to withdrawing the controversial regulation introduced by the Obama administration.… Continue Reading

The U.S. Department of Labor Rolls Back Obama-Era Guidance on Joint Employers and Independent Contractors

The U.S. Department of Labor (“DOL”) announced today that it was rolling back an Obama-era policy that attempted to increase regulatory oversight of joint employer and contractor businesses. Courts and agencies use the joint employer doctrine to determine whether a business effectively controls the workplace policies of another company, such as a subsidiary or sub-contractor. … Continue Reading

NLRB Orders Union To Drop Unlawful Grievance, to Dismiss Suit Seeking to Compel Neutral Employers to Arbitrate Grievance and to Pay The Employers’ Legal Fees and Defense Costs

On May 23, the NLRB issued Road Sprinkler Fitters Local Union 669, finding that U.A. Local 669 (Union) violated the NLRA when it sought to apply and enforce facially valid anti-double breasting language in a national master labor contract to a dispute that it had with Firetrol Protection Systems, Inc. (Firetrol), a non-union company following … Continue Reading

Trump Initiates Ideological Shift in Administration of EEOC and NLRB

President Donald Trump signaled an ideological shift in the U.S. Equal Employment Opportunity Commission and National Labor Relations Board, through two new appointments, during his first week in office.  President Trump appointed Republicans Victoria Lipnic, and Philip A. Miscimarra, as acting chairpersons for the EEOC and NLRB, respectively.  Both Lipnic and Miscimarra appear disposed to … Continue Reading

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 … 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
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