Archives: NLRB

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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

NLRB Issues New Captive Audience Rule for Mail-Ballot Elections

The NLRB opened a busy February by overruling a rule it established in 1959 governing when captive audience meetings may be held for mail-ballot elections. For nearly 60 years, there was a divide in the way the NLRB handled captive audiences for mail-ballot elections and manual (in-person) elections. For mail-ballot elections, the NLRB followed the … Continue Reading

NLRB Not Waffling on Pre-employment Class-Action Waivers Despite Fifth Circuit Reversals

Nearly two years after Waffle House Inc. employee Carrie Harris filed an unfair labor practices charge, the Georgia-based breakfast chain was unable to butter up the National Labor Relations Board (NLRB). Harris’ complaint alleged that Waffle House’s arbitration agreement that employees were required to execute as a condition of their employment violated the National Labor … Continue Reading

The Politics of ‘Talking Politics’ in the Workplace: Some Basic Steps for Navigating Political Speech at Work

Tis the season for political debates. If it hasn’t happened to you yet, it soon will.  You’ll go into the break room at work and a group of people will be arguing in increasingly heated tones:  should it be Hillary or Bernie?  Trump or Cruz?  Is Bernie too old?  Hillary not “man enough”?  What about … Continue Reading

Executive Action: Obama’s Legacy and 2016 Predictions (Part 2 of 2)

As promised in our previous post, today we conclude our predictions on President Obama’s 2016 executive activity.  While we believe the President’s final executive orders will target immigration and perhaps even corporate political expenditures, we predict executive agency action will cover a broad range of pressing labor and employment issues.  With federal legislative gridlock expected … Continue Reading

Supreme Court Reiterates Preemptive Effect of Federal Arbitration Act

The U.S. Supreme Court has once again reinforced its interpretation of the Federal Arbitration Act, ruling on December 14 that a California state law prohibiting class action waivers in arbitration agreements may not trump the Court’s earlier decision in favor of enforcement of arbitration agreements. In the four years since the Supreme Court’s decision in … Continue Reading

Second Circuit “Likes” NLRB Decision on Facebook Activity

On October 21, 2015, the US Court of Appeals for the Second Circuit upheld the National Labor Relations Board’s (NLRB) ruling that a Facebook “like” can be protected concerted activity under the National Labor Relations Act (NLRA)—this underlying NLRB decision was reviewed in detail in our previous post regarding Triple Play v. Sazone and Triple … Continue Reading

“It’s like déjà vu all over again” – Fifth Circuit Reverses NLRB, For The Second Time, Rejecting Unfair Labor Practice Finding on Class and Collective Action Waivers in Arbitration Agreements

With the World Series getting underway, Yogi Berra’s famous quote seemed like the appropriate headline for our latest update in the National Labor Relations Board’s (NLRB) D.R. Horton/Murphy Oil saga.  As we have discussed in previous blog entries, in 2012, the NLRB issued its decision in D.R. Horton, Inc., in which it held that an … Continue Reading

NLRB Expands Its Definition Of ‘Joint Employer’

In a highly-anticipated decision, a divided National Labor Relations Board (NLRB) significantly expanded its definition of “joint employers.”  The new standard portends to have substantial implications to employers across a broad spectrum, but most significantly in the franchisor-franchisee and temporary labor context.  In Browning-Ferris Industries, three members of the five-member Board did away with the … Continue Reading

NLRB Punts In Northwestern University Football Case, Declines To Decide Whether Scholarship Athletes at Private Universities Can Join A Union

With the college football season about to get underway, on August 17, the National Labor Relations Board (NLRB) issued its highly-anticipated decision involving Northwestern University’s scholarship football players’ attempt to unionize. As background, the National Labor Relations Act guarantees the right to organize and join labor unions.  This right, however, applies only to employees employed … Continue Reading
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