Archives: NLRB

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Fifth Circuit Reins In NLRB After It Declares Basic Workplace Civility Policies Illegal

As we have reported to you in the past, workplace conduct policies have become a hotbed of trouble due to the NLRB’s recent focus on their potential for chilling union activity. In one such recent action, the NLRB attacked several employee handbook policies of employer T-Mobile USA, Inc./MetroPCS Communications, Inc. (MetroPCS is an affiliate of … Continue Reading

Senate Confirms Trump NLRB Nominee Marvin Kaplan; Delays Confirmation of William Emanuel

On June 19, we predicted that the Trump administration was expected to formally announce attorneys Marvin Kaplan and William Emanuel as candidates to fill the two vacant slots on the National Labor Relations Board. As predicted, President Trump did, in fact, nominate Messrs. Kaplan and Emanuel to the Board earlier this summer. The nominations went … Continue Reading

National Labor Relations Board Moves A Step Further Away From Its Current Pro-Union Composition

On July 13, the National Labor Relations Board took another step to shift away from the staunchly pro-union agency that has existed over the last eight years. This occurred when the Senate labor committee considered the nominations of Marvin Kaplan and William Emanuel, whom the Trump Administration had put forward for the two vacant Board … Continue Reading

Federal Court Overturns NLRB, Says Jimmy John’s Employees’ Disloyal Conduct Not Protected 

In a closely-watched case, on July 3, 2017, the U.S. Court of Appeals for the Eighth Circuit refused to enforce a National Labor Relations Board (“NLRB” or “Board”) decision in which the Board found MikLin Enterprises, Inc. (“MikLin”), owner of 10 Jimmy John’s franchises in the Minneapolis, Minnesota area, violated the National Labor Relations Act … Continue Reading

Hearing Set Before Senate Committee on NLRB Nominations

Updating our June 19 post, as expected, President Trump nominated Marvin Kaplan and William Emanuel to fill the two currently-vacant seats on the National Labor Relations Board.  A hearing on their nominations is now scheduled for July 13 before the Senate Health, Education, Labor & Pensions (HELP) Committee.  If recommended by the HELP committee, the nominees … Continue Reading

NLRB’s Ruling on Workplace Recording Policy Survives Appellate Court Review

Like many employers, Whole Foods maintained a policy that prohibited employees from making audio or video recordings at work.  The purpose of the policy, as explained by Whole Foods, was not to stifle employees, but rather to promote open communications by allowing employees to speak freely without concern of being secretly recorded.  In 2015, the … Continue Reading

Sixth Circuit Joins Two Sister Circuits In Holding That Class Action Waivers In Employment Arbitration Agreements Violate National Labor Relations Act

Court joins Seventh and Ninth Circuits in holding that employer’s requiring employees to waive class and collective action procedures as a condition of employment is unenforceable, but issue will be resolved late this year by United States Supreme Court The issue of whether an employer can require, as a condition of employment, that an employee … Continue Reading

NLRB Rules That Barring A Former Hotel Employee Who Sued Her Employer From The Premises Is An Unfair Labor Practice

On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer.… Continue Reading

NLRB Will Not Hack Into Prior Decision Regarding Employee Email Use During Non-Work Time

Network security and protection of confidential information are among the reasons many companies place limits on how and when employees may use company-provided email.  However, the National Labor Relations Board (NLRB or Board) has largely ignored if not outright rejected these legitimate concerns, finding that under certain circumstances, they are outweighed by employees’ right to … Continue Reading

Federal Appeals Court Decision Regarding NLRB Workplace Investigation Confidentiality Policies Fails To Answer Critical Question For Employers

In 2015, we reported to you about the National Labor Relations Board’s (NLRB) decision in the Banner Estrella Medical Center case, which placed significant limits on employers’ ability to request employee confidentiality during workplace investigations. As a reminder, in the Banner case, the NLRB found that Banner Estrella maintained a policy of instructing employees involved in … Continue Reading

Supreme Court Reins in Administrative Overreaching of NLRB

On March 21, the U.S. Supreme Court ruled that one-time acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon improperly served as the agency’s Acting General Counsel while he awaited U.S. Senate confirmation to a permanent appointment, upholding a U.S. Court of Appeals for the D.C. Circuit ruling that most of his three-year tenure … Continue Reading

NLRB Acting Chair Dissent Opinions Indicate A Shift Back to Pro-Employer Decisions

The NLRB was intended to be an unbiased arbiter of labor disputes, ensuring workers were protected from unfair labor practices. As we have seen in previous blogs, in the past several years, the NLRB has been unapologetically pro-union. President Trump’s appointment of Philip A. Miscimarra, a tenured board member who has been a tireless advocate … Continue Reading

Missouri Becomes 28th State to Pass Right-to-Work Law    

On February 6, Missouri Governor Eric Greitens signed into law SB 19, making Missouri the 28th state to adopt right-to-work legislation.  The law goes into effect on August 28, 2017, and provides that no employee may be required as a condition of employment or continued employment to become a member of a union or to … Continue Reading

US Supreme Court to Resolve Dispute Over Enforceability of Class Waivers in Arbitration Agreements

  As followers of our blog know, we have been closely watching developments over the past few years involving the tension between the National Labor Relations Board and the courts concerning whether arbitration agreements that require employees to resolve most employment-related disputes in individual arbitration proceedings, and bar the use of class or collective action … Continue Reading

A Last Hurrah?  NLRB Majority Elevates Form over Substance to Give Union Another Chance After Election Defeat

With a soon-to-be reformulated Board, which will be comprised of a majority of Republican appointees, don’t expect to see decisions like this again anytime soon.  In 2015, the NLRB pushed through changes to its rules governing the secret ballot election process by which employees determine whether they wish to be represented by a labor union.  … Continue Reading

NLRB Tackles University Social Media Policy in Advice Memorandum

Second year pro football quarterback and Northwestern University alum, Trevor Siemian is making headlines on the field this season for the Denver Broncos. His alma mater is making headlines off of it in the realm of labor law.  Again. Last year, Northwestern’ s scholarship football players filed an action with the National Labor Relations Board … Continue Reading

Momentum Continues Against Validity of Class and Collection Action Waivers – Delaware District Court Judge Refuses to Enforce Class Action Waiver

We have been closely monitoring the battle over the legality of class and collective action waivers under the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) has been steadfast in its position that such waivers run afoul of the NLRA.  The Fifth Circuit was the first Circuit Court to weigh in, consistently … Continue Reading

NLRB Exercises Jurisdiction Over Charter Schools

It’s been a busy summer for the National Labor Relations Board.  After issuing important decisions expanding the reach of the National Labor Relations Act to allow university graduate assistants and  temporary workers to seek to join unions, as well as decisions expanding back pay awards and limiting employers’ ability to replace striking staff, on August … Continue Reading

NLRB Concludes Graduate Assistants Are Employees, Authorizing Unionizing Attempt

In a much anticipated decision, the National Labor Relations Board on August 23 ruled 3-1 that Columbia University graduate students who perform teaching assistant and research assistant services at the university in connection with their studies are employees within the meaning of the National Labor Relations Act. The Board’s decision clears a path for private … Continue Reading

Ninth Circuit Widens Circuit Split on Enforceability of Class and Collective Action Waivers In Individual Employment Arbitration Agreements

Ninth Circuit joins Seventh Circuit in holding that class and collective action waivers in arbitration agreements violate the National Labor Relations Act and therefore are unenforceable. The question is straightforward enough:  does an employer violate the National Labor Relations Act (NLRA) by requiring that employees sign an agreement to arbitrate any claims concerning their wages, … Continue Reading

Seventh Circuit Goes It Alone – Upholds NLRB Decision Holding That Class and Collective Action Waivers in Arbitration Agreements Are Unlawful and Unenforceable

The court is the first federal appellate court to accept the NLRB’s position on the issue The long-running teeter-totter battle between National Labor Relations Board (NLRB or Board) and employers regarding the lawfulness of class and collective action waivers in employment arbitration agreements continues.  Joining the fray this week is the U.S. Court of Appeals … Continue Reading

NLRB Majority Reaffirms Standard Applied in Employer Rules Cases Over Dissent Advocating New Standard

It’s a nearly universal truth that all employers have certain rules they have put in place to govern certain aspects of the workplace. Such rules include workplace conduct rules, rules relating to use of social media, solicitation and distribution policies, and the list goes on.  Many if not most employers inform employees of these rules … Continue Reading
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