The National Labor Relations Board Is Signaling A New Approach To Failure-To-Bargain Charges (US)

The National Labor Relations Board has recently signaled another key change for unionized employers. The Board may be on the verge of significantly expanding employers’ key defense to alleged failure-to-bargain unfair labor practice charges.

Historically, the Board has made it particularly difficult for a unionized employer to adjust or update its operations in a way that affects employees. At default, when a union represents a group of employees, their employer must bargain with that union before taking any action that would change the employees’ working conditions. This duty to bargain potentially can restrict an employer in a broad range of ways, including with respect to decisions that might affect employees’ job duties, shifts, training, standards of conduct, and benefits. The Board has required employers to bargain over changes as minor as the prices of food in vending machines. Continue Reading

World Mental Health Day

Mental Health DayThe news today will be full of stories about mental health, aimed at raising awareness of this critical issue.  Similarly, many companies will be running events to support employees’ mental health, encouraging them to feel comfortable disclosing their any issues and to seek support.  This is all very laudable and forms an important part of the ongoing efforts to end the stigma of mental illness.  However, mental health is not an issue for one day of the year alone.  It is a whole year, whole company issue, which deserves to form a permanent part of the wellbeing agenda and which should not need a ‘business case’ to make.

So, what does that mean?  Well, it starts with engagement.  Not just at employee level, or line manager level, but at the most senior levels of a business.  One good example of this is of António Horta-Osório, Lloyds Banking Group Chief Executive, who has been open about his struggles with his mental health (here is his piece in the Guardian Online from 1 May this year) Continue Reading

Join Us on October 10 for Our Annual NLRB Update Webinar (US)

The change in administration following the 2016 election resulted in a change in the political makeup of the National Labor Relations Board.  That, in turn, led to a number of significant changes in the law, affecting a wide range of labor relations issues and impacting both unionized and non-union employers.  Please join us on October 10 at 2:00 p.m. Eastern/11:00 a.m. Pacific for our annual webinar addressing these developments at the NLRB.  Registration is here.

Post-Epic Systems, Kentucky Supreme Court Holds That Under State Law, Employers Cannot Require Mandatory Arbitration Agreements as a Condition of Employment (US)

Earlier this year, the United States Supreme Court held in Epic Systems Corp. v. Lewis that employers can require employees to agree to arbitrate disputes between them solely on an individual basis and to waive class and collective action litigation procedures without running afoul of federal law.  (See our post here).   Addressing an issue not explicitly discussed in Epic, the Kentucky Supreme Court recently held in Northern Kentucky Area Development District v. Snyder that where employment is conditioned on the employee agreeing to arbitrate claims – that is, agreeing to arbitrate is a requirement to getting (or keeping) a job – that requirement violates Kentucky state law.   Continue Reading

US Supreme Court Begins New Term with Three Arbitration Cases Set for Oral Argument in October

We’ve been keeping you apprised of the many developments over the past few years coming from the United States Supreme Court and other courts concerning agreements between employers and their employees to arbitrate disputes arising out of the employment relationship.  The Supreme Court’s decision last term in Epic Systems v. Lewis, which we discussed in our post here, garnered significant attention as it addressed the National Labor Relations Board’s (“NLRB”) several-years’-running position that arbitration agreements with class or collective litigation waivers illegally restrain employees in the exercise of concerted activity protected under the National Labor Relations Act (“NLRA”).  In Epic Systems, the Supreme Court rejected the NLRB’s position, holding that class action litigation is court procedure and not a substantive right or an activity protected under the NLRA.  The Court thereby preserved employers’ ability to limit disputes to individual claims in arbitration without running afoul of employee rights under the NLRA to act together to improve their work environment.

The Supreme Court’s new term began as it always does, on the first Monday in October.  On the Court’s docket in its first month are three more arbitration cases – one of which also deals with class action litigation.  All three cases involve various aspects of the reach or interpretation of the Federal Arbitration Act (“FAA”).  Continue Reading

Deadline Extended for Compliance with New York Sexual Harassment Prevention Training Requirement

As we discussed in our previous posts – see here and here – in April 2018, New York passed legislation intended to combat workplace sexual harassment.  Under this new law, employers are required to implement and distribute to employees a written policy prohibiting sexual harassment by October 9, 2018.  To assist employers in complying, in April 2018, the New York State Department of Labor (“NYSDOL”) released a package of draft model policies for employers and state contractors to provide guidance to employers on how to implement their new sexual harassment prevention policies.  At that time, the NYSDOL proposed that all covered New York employers be required to provide employees with sexual harassment training no later than January 1, 2019.  However, in early October 2018, after considering comments from the public, New York released its finalized model materials, in which, among other things, it changed the deadline for training from January 1, 2019 to October 9, 2019, giving employers a full year from the date implementation is required under the law to complete the required employee training.  Although the deadline has been extended, it is important for New York employers to begin thinking about how they will comply with the training requirements by the October 9, 2019 deadline.  Squire Patton Boggs can assist with this – please see Training and Beyond in the #MeToo Era – as well as other issues raised by but not fully addressed, and that remain unanswered, in the NYSDOL’s final materials.

Redundant for the day – how it feels to be let go

Redundancy. The word is enough to take the bounce out of anyone’s stride. For a business, it means undergoing a complicated process of selection, consultation, getting over all the practical hurdles that may pop up along the way and all the while somewhere at the back of your mind sits the uncomfortable prospect of a Tribunal claim landing on your desk. As lawyers, it’s our job to help prepare employers and advise on how best to tackle situations as and when they arise. But what about the human element? It goes without saying that experiencing redundancy as an employee is far worse and much more personal than it is for a business, but there are also the managers, HR advisors and other individuals involved to consider, and it’s no walk in the park for them either. We can advise on what to do when an ‘at risk’ employee goes on sick leave just in time to miss their first consultation, but we can’t do much to make it any less traumatic to tell a colleague and friend that they are losing their job.

Continue Reading

Municipal Right-to-Work Ordinance Struck Down by US Federal Appeals Court

Right-to-work laws prohibit employers from entering into union security or “closed shop” agreements with unions that require employees to join and financially support a union in order to obtain employment.  Twenty-seven U.S. states presently have such laws.  In some states that do not have these laws, cities have passed local right-to-work ordinances to apply to employers doing business in their city.  These municipal-level efforts to address right-to-work issues are routinely challenged by labor unions as being preempted by the federal National Labor Relations Act (NLRA).

On such challenge was raised to a local right-to-work ordinance passed by the Village of Lincolnshire, Illinois.  Illinois does not have a statewide right-to-work law; in 2015, Lincolnshire passed its own ordinance banning employers in the village from entering into union security agreements requiring that employees join a union, compensate a union financially, or make payments to third parties in lieu of such contribution. Continue Reading

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