So, following the violent events and controversy surrounding the white nationalist/supremacist rally in Charlottesville, it was reported by Berkeleyside that an employee was fired from his job because of his participation in the rally. (The story was subsequently updated to state that the employee voluntarily resigned during a conversation with his employer about his involvement at the rally). But the initial story raised questions about whether an employer can take action against an employee for engaging in off-duty activities that an employer may find repugnant – such as participating in a white supremacist rally. Continue Reading Workplace Lessons From Charlottesville

Last year, Fiona’s sister told her that a herd of goats, complete with a  goat herder, had moved into the park next to her house. They were brought in to clear certain park areas of overgrown vegetation. What a charming, effective, and environmentally-friendly solution! Apparently Western Michigan University had the same thought, because it also brought in goats to clear areas of the campus. But a union has decided to butt in and has filed a grievance against the University, claiming that the goats were performing “union work!” (We can see it now, brave goats crossing a picket line to get to their jobs!) Continue Reading Animal Subcontracting – Getting the Union’s Goat!

I became the commissioner of my daughter’s county basketball league when she was nine.  No one else would “step up.”  The prior year, a player had slapped another player in the handshake line at the end of a game in retribution for rough play (by an 8-year-old girl!) and no game commissioner was there to intervene.  I decided to take on the role of cool-headed logistics manager: a non-coach who could make sure the game schedule was set, the rules were observed, and each game had a designated adult in attendance to avoid bad sports behavior (whether by players, coaches or parents).  But this “cool headed commissioner” is ripping mad at the NLRB (or, to be more precise, the NLRB majority) for concluding that junior and senior high school lacrosse referees are employees and not independent contractors entitled to unionize! Continue Reading The NLRB Thinks High School Sports Referees Can Unionize!

The issue of whether employees can be required to sign arbitration agreements that contain waivers of their right to file a class or collective action over employment-related disputes is one that has drawn much attention – and much conflict – in recent years. The Obama administration, it seemed, steadfastly opposed such waivers. Under the Trump administration, which (regardless of your politics) has had a slow and bumpy transition of federal agency leadership, the agencies do not appear to be operating from the same playbook – as evidenced by recent actions by the National Labor Relations Board, (NLRB), the Department of Justice (DOJ), and the Consumer Financial Protection Board (CFPB). Continue Reading The Government Seems Confused About Class Action Waivers

NLRB logoFor several years we have watched the National Labor Relations Board take ever-more aggressive positions that (in our view) ignore the realities of the modern-day workplace and business operations (or really, common sense). Think handbook cases, Facebook cases, email cases….. you get the picture.  Republican members of the Board have vehemently protested the actions of the Democratic majority, to no avail. So with the change to a Republican administration and the recent appointment of the sole Republican Board member – Philip Miscimarra – first to the Acting Chairman and now regular Chairman role, we had great expectations that the Board would return to a more balanced (i.e. sane) perspective. Continue Reading A Battle for the Soul of the NLRB?

FootballBueller?…Bueller?…Bueller?…

Griffin?…Griffin?…Griffin?….

Readers of this blog likely know the first reference. But, how about the second? Give yourself a hand if you said “Richard F. Griffin, Jr., General Counsel (GC) of the National Labor Relations Board.” GC Griffin, a holdover from the Obama administration, decided last week that the new Trump administration was not going to have all the fun in Washington, D.C.  What is it that GC Griffin did, you ask? Well, he decided that your favorite running back from Stanford, or that dynamic wide receiver from Northwestern, are employees under the National Labor Relations Act, entitled to full protection under the Act! Continue Reading Are College Football Players Employees? The NLRB General Counsel Thinks So!

gavel-1238036DOL’s Attempt to Interfere with Attorney-Client Relationships Blocked by Texas Court

Back in March of this year, the Department of Labor (DOL) tried to interfere with employers’ confidential communications with their attorneys.  Some law firms surrendered, ran, or hid, saying they would no longer have the kinds of conversations DOL wanted to interfere with.  Shawe Rosenthal, along with other Worklaw Network firms, stood up and fought.  We filed a lawsuit against the DOL to protect our clients’ interests and maintain the integrity of the attorney-client relationship.  Two similar lawsuits were filed against the DOL, and in one of them, employers can consider themselves victorious following an Order from a United States District Court in Texas holding the DOL’s new rule unlawful and setting it aside. Continue Reading DOL’s Attempt to Interfere with Attorney-Client Relationships Blocked by Texas Court

auction-gavel-HpmTks-clipartA federal judge in Texas has issued a preliminary injunction that prevents the Department of Labor’s revised overtime exemption rule from taking effect as scheduled on December 1, 2016.

As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question.  There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty. Continue Reading Overtime Rule Will Not Take Effect On December 1

pleAs a die-hard management-side labor and employment attorney who has been frustrated with the recent flood of anti-employer decisions coming out of the National Labor Relations Board, I enjoy those infrequent moments when a union experiences a little of that pain – such as in the recent case of Laborers Union Local 91.

To give a little background, all employees (whether unionized or not) have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activity regarding the terms and conditions of employment for their “mutual aid or protection.” The Board has issued a number of rulings finding that employees’ social media activity (e.g. Facebook posts and likes, and tweets) criticizing, disparaging, and otherwise describing their employers in ways I (and many others) would find offensive is protected under Section 7. (Meaning that the employer cannot discipline or terminate the employee for engaging in seemingly inappropriate behavior against the employer). Unions, of course, have been supportive of these decisions. But it appears that at least one of them did not realize the same rule applies to unions. Continue Reading Union Violates Employee’s Right to Engage in Protected Social Media Activity

ml_rm_iliw_tm_4cc_d_eAs I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation. Continue Reading SEIU Expands Joint Employment Fight to the EEOC