One day after Labor Day, the National Labor Relations Board (“NLRB” or the “Board”) issued a proposed rule that would rescind and replace the Trump Administration’s 2020 rule that established the current test for determining whether two entities are joint employers. Predictably, the proposed rule, if adopted by the Board, will result in more findings that two entities are joint employers. Under federal labor law, a joint employer is required to bargain with a union selected by its jointly-employed workers and may be held liable for the unfair labor practices committed by the other employer.

Continue Reading NLRB Proposes Return to a More Expansive Joint Employer Standard

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

In today’s episode of “They Really Made a Federal Case Out of That?” the National Labor Relations Board (the “Board”) rejected a union’s claim that a hotel employer was obligated to bargain its decision, or the effects of its decision, to purchase and use fluffier king size pillows in its hotel rooms. (Your tax dollars at work, my friends!)
Continue Reading Hotel Did Not Need to Bargain Over Puffier Pillows, says NLRB…

A day after President Biden announced his COVID-19 Action Plan (which we discussed here), leaders from the Occupational Safety and Health Administration held a short briefing to discuss its forthcoming Emergency Temporary Standard that will require employers with 100+ employees to (1) mandate vaccinations or weekly testing, and (2) provide paid vaccination leave. The President’s announcement regarding these requirements was sorely lacking in details, but the OSHA briefing provided a few (not many) useful tidbits for nervously wondering employers.  (Be aware, however, that the ETS is not yet written, and it is possible that some of what they said today might not end up being accurate….)
Continue Reading A Few More Answers from OSHA on the Impending Vaccination ETS…

A National Labor Relations Board (NLRB) hearing officer recently recommended that the union election at an Alabama Amazon warehouse be run a second time. The hearing officer, an employee of a NLRB Regional Office, sided with the Retail, Wholesale and Department Store Union (RWDSU) that Amazon’s actions interfered with a fair election. Specifically, the hearing officer found that Amazon’s installation of an unmarked mailbox as a ballot drop-site that was within the view of company surveillance cameras, hiring of private police, threatening of employees, and changing county traffic lights (come on, how many companies have the pull to get county traffic lights changed?) to impede RWDSU access to voters amounted to objectionable conduct.

Continue Reading NLRB Hearing Officer Recommends Second Union Election at Amazon – But Will It Happen?

On August 12, 2021, the recently confirmed General Counsel (GC) of the National Labor Relations Board, Jennifer Abruzzo, issued her first official memo. Per an NLRB press release, GC Memo 21-04 “lays out a clear agenda…on some priorities of the Office of the General Counsel.” The memo directs NLRB field offices to submit cases addressing issues identified in the memo to the Regional Advice Branch of the Office of the General Counsel. Typically, such submissions are the first step on the path to overturning existing case law that a sitting GC seeks to change.
Continue Reading New NLRB General Counsel Signals Major Changes Ahead

As our two major political parties wage battle in statehouses around the country regarding the ways in which citizens cast their votes, the National Labor Relations Board (NLRB) seems primed to implement electronic voting (“e-voting”) in union elections. E-voting has long been on Labor’s wish list. As we transition out of a pandemic that significantly reduced the number of manual (read: in-person, onsite) representation elections, it appears that the Democratic-controlled Board and Congress are prepared to dedicate resources to add an e-voting system to the Board’s manual and mail-ballot election processes.

Continue Reading E-Voting in Union Elections at the NLRB?

With the change in administration, the Department of Labor’s recently-issued Final Rule governing the treatment of tipped employees under the Fair Labor Standards Act was thrown into doubt. Following a formal delay of the Final Rule’s effective date of March 30, 2021, the Biden DOL has now announced that parts of the Final Rule will take effect on April 30, 2021, while other parts will be further delayed and revised, subject to public comment.

Continue Reading The DOL’s Tipped Employee Final Rule: What Is Taking Effect and What Is Not

Following the shocking events of January 6, 2020, there have been many reports of individuals who have been terminated, suspended or resigned from employment as a consequence due to their involvement in the deadly storming of the Capitol building or their active support of President Trump’s “stolen election” narrative. But what exactly are the parameters of when an employer can take action against an employee for engaging in off-duty activities that an employer may find repugnant? We first blogged about this issue back in 2017, in light of the deadly white nationalist/supremacist rally in Charlottesville. But a refresher seems timely.
Continue Reading Can Employers Terminate for Off-Duty Conduct (Say, Like Storming the Capitol)?

One of the many services we provide to our clients is training on how to respond effectively to union organizing activity. In short, we provide the do’s and don’ts of how to respond lawfully to a union’s efforts to organize an employer’s workforce. During these trainings, we often stress the fine line dividing lawful and unlawful statements and conduct.

Continue Reading Here’s What Not to Do When Faced With Union Organizing Activity