Evan Conder

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In two cases issued on August 31, 2023, the National Labor Relations Board greatly expanded the universe of employee activity protected by the National Labor Relations Act. This is the latest in a week-long flurry of pro-union/worker cases that have left employers, both unionized and not, reeling, including restrictions on unionized employers’ ability to act unilaterally, employers being subject to collective bargaining orders without a secret-ballot election, an expedited timeline for secret ballot elections, and affirmation of a test for determining when adverse action is motivated by protected conduct. Continue Reading The NLRB Vastly Expands the Parameters of Protected Concerted Activity

In repurposing an always-popular topic (and, as we have done with last year’s March Madness tournament) we offer employers some guidance on March Madness at work, this time with some improvements and updates on gambling and productivity, and a brand new drug and alcohol section. Continue Reading A Revised Updated Employer’s Guide to March Madness

Well, Super Bowl Sunday is almost here. Unlike March Madness or the World Cup, which extends over weeks, it’s a single event. However, there’s a high level of interest in the game – last year, the NFL estimated that approximately two-thirds (!!!) of the U.S. population watched the Rams defeat the Bengals in Super Bowl LVI. (And those of us on the East Coast stayed up late to do so). So, we can still expect the Super Bowl to have an impact in the workplace. And as we did for March Madness and the World Cup, we offer employers a little guidance on the Super Bowl at work. Continue Reading An Employer’s Guide to the Super Bowl

The National Labor Relations Board (“NLRB” or the “Board”) took significant steps to limit the power of property owners to restrict contractors’ workers access to their property in a 3-2 decision on Friday. In Bexar County II, the Board reverted to the test articulated in New York New York Hotel & Casino, 356 NLRB 907 (2011), concluding that property owners may only restrict access by contractors’ workers when the workers’ activities “significantly interfere” with the use of the property, or where the property owner has “another legitimate business reason” to remove them from their property.
Continue Reading The NLRB’s Reinstatement of a Worker-Friendly Standard for Property Access

As you may be aware, there is some contentious litigation ongoing between the PGA Tour and LIV Golf, a new and controversial golf league financed by the Saudi Arabian Public Investment Fund (i.e. the Saudi Arabian government) that aims to become a competitive alternative to the PGA Tour.  If you’ve successfully avoided the barrage of news stories on the issues, I’ll summarize the main points for you here:
Continue Reading Wait, Is that Pro Golfer an Employee or Independent Contractor?

Is the playing of obscene and misogynistic rap music in the workplace discriminatory on the basis of sex if it offends women?  A former Tesla employee has asked the U.S. District Court for Nevada to answer “yes” to that question after filing suit against her former employer alleging that, among other things, the obscene and misogynistic rap music, as well as the actions and statements made by her co-workers related to that music, amounted to sexual harassment.
Continue Reading Can Rap Music in the Workplace Create a Hostile Work Environment?

On Monday, August 29, 2022, the National Labor Relations Board issued its first precedent-shifting decision under the Biden administration, which will have the effect of permitting more apparel with union insignia in the workplace.

The Law on the Display of Union Insignia. An employer’s interference with an employee’s display of union insignia on their apparel is presumed to be unlawful, unless the employer can demonstrate “special circumstances” to justify the interference. Special circumstances are found when the display jeopardizes employee safety, equipment or product safety, or unreasonably interferes with a public image which the employer has established as part of its business plan. The Board had previously held in its 2019 Wal-Mart Stores decision that the “special circumstances” test applied only when an employer completely prohibited union insignia, and that certain size-and-appearance restrictions on union insignia could be lawful based on less compelling employer interests. However, the Board has now reversed itself in Tesla, Inc. to assert that the special circumstances test will apply to any restriction, and not just total bans.Continue Reading Employers – Be Prepared for More Union Apparel in the Workplace

With the play-in games underway, March Madness has officially descended upon employers everywhere. An estimated 40 million Americans will fill out tournament brackets, and chances are all of them will be imperfect (1 in 120.2 billion to be exact, and that’s only if you know a little bit about basketball).  During this time of the year, employers should keep in mind legal implications of any office bracket pools, and should plan to keep a closer eye on productivity given how much is typically lost in March.  Whether employees are working from home or from the office, chances are they may use their work time to make picks. And when the tournament begins, you can be sure that many employees will be checking scores during their work time, if not actually watching the game. This post will serve as a helpful guide to employers on March Madness issues  in the workplace, including gambling and lost productivity, and will provide helpful recommendations on how employers should navigate them.
Continue Reading An (Updated) Employer’s Guide to March Madness

Is it considered identify theft? Interview fraud? Maybe something like the prank that Jim and Pam pulled on Dwight when they replaced Jim with an actor? Whatever it is, employers should beware that applicants are no longer just puffing the proficiency of their skills, but have come up with surprisingly bold and creative ways to fraudulently secure a job through the virtual interview process.

One recent example of what the New York Times terms “extensive image creation” was reported by askamanager.org. A company’s new hire turned out not to be the same person that was interviewed for the position. After three rounds of interviews, one of the hiring managers noticed that something was off with their new hire after a little over a week on the job. The first signs that something was afoot included the new hire wearing glasses when he had worn none during his interview, and he had completely different hair. The new hire had previously made references to being single during his interview from an indoor desk area, but he now spoke with coworkers about having to work in the garage because his three children and wife were at home. He also “re-introduced” himself to an HR Business Partner who was on two of three rounds of interviews and had extensive discussions with the new hire. Even more, the new hire couldn’t answer questions which were pivotal to the position even though they were previously confidently and articulately discussed in the interview.Continue Reading Who are you and what did you do with my job candidate?

It’s not surprising that employers don’t approve of employees “shredding the gnar”* when they’re supposedly unable to work because of a serious medical condition. And that’s exactly what happened in Botelho v. Mayorkas, where a former Behavior Detection Officer for the TSA who worked at the Honolulu International Airport was fired for Family and Medical Leave Act abuse after his employer discovered that he was making snowboarding movies while apparently using FMLA to take an extended vacation.
Continue Reading Extraordinary Employee Misconduct: Making Snowboarding Movies While on FMLA?