Labor Law & NLRB

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I was amused by a recent case involving rather odd facts. Apparently an employee arrived at work with windblown hair. Her co-worker said “I can fix that for you.” The employee responded, “Sure, go ahead.” The co-worker then picked up a pair of scissors and proceeded to CUT THE EMPLOYEE’S HAIR! Now, that probably would have been fine (or at least somewhat understandable) if they worked at a salon, but these employees worked at a hospital! In the pharmacy department!Continue Reading Extraordinary Employee Misconduct – Giving a Non-consensual Haircut!

In light of the Occupational Safety and Health Administration’s recent announcement of a Notice of Proposed Rulemaking to rescind the majority of its controversial electronic reporting requirements (which we discussed in our July 2018 E-Update), I decided to review some previous guidance on these requirements (yes, because I am that much of a nerd). The requirements had been imposed through a final rule issued in 2016, which also sought to provide additional protections to workers for reporting work-related illnesses and injuries – specifically targeting safety incentive programs and drug-testing programs. I was shocked to realize that OSHA asserts that post-incident drug-testing of employees pursuant to a collective bargaining agreement violates the Occupational Safety and Health Act!
Continue Reading OSHA Pre-empts CBA Drug-Testing Provisions?

Back in 2016, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which Shawe Rosenthal is a member, we filed suit against the U.S. Department of Labor to block the DOL’s new interpretation of the “persuader rule,” which is the advice exemption of the Labor Management Reporting and Disclosure Act (“LMRDA”). Several other suits were filed as well, a nationwide injunction was issued by a federal court in Texas, the DOL issued a proposed rule to rescind the new interpretation, and now, repeatedly citing the favorable decisions in our lawsuit and directly quoting the comments to the DOL’s proposed rule we submitted on behalf of Worklaw, the DOL has officially rescinded the rule.
Continue Reading We Sued the DOL, and the DOL Blinked

On June 6, 2018, the General Counsel of the National Labor Relations Board issued guidance on lawful and unlawful handbook rules under the National Labor Relations Act. This guidance follows the GC’s December 1, 2017 withdrawal of prior guidance on handbook rules that had been issued in 2015. Shortly thereafter, on December 14, 2017, the Board issued its decision in The Boeing Co., in which it articulated a new and more balanced test for assessing the legality of workplace rules, applicable to both unionized and non-unionized employers. 
Continue Reading NLRB Issues New (And More Balanced) Guidance on Handbook Rules

Many employers would like to ensure that employees focus on their work during their working time – after all, that’s what they’re being paid to do! One way employers attempt to prevent distractions is by implementing a policy that prohibits employees from soliciting their co-workers (Buy cookies! Participate in this raffle! Come to my church supper! Join a union!) or giving them written materials to read while at work.
Continue Reading Guidelines for a Valid No-Solicitation/No-Distribution Policy

Practitioners of labor law know that the 5-member panel comprising the National Labor Relations Board is appointed by the President of the United States. The Board majority (three members) are from the President’s party and the remaining two members are from the other party. As the administration changes, so does the Board majority.
Continue Reading Recuse Me? Why the NLRB’s Order Vacating the Hy-Brand Decision Should Not Stand

The National Labor Relations Board’s Office of the General Counsel recently issued an Advice Memorandum and, although the employer and employee names are blanked out, it obviously is about James Damore and Google. Unless you have been in the wilds of Pago Pago for a year, you have heard the story of James Damore, the “Googler” (that’s what they call themselves at Google) who, in response to one too many company diversity training initiatives, prepared a memo to convey his thoughts and engage in open dialogue.
Continue Reading NLRB GC Is Woke! (In more ways than one…)

Employers struggle with the challenges of social media platforms that allow employees to post information, complaints, and even disclose confidential company information on an anonymous basis. Often, the information is false or misleading – but employers usually find little recourse, as we’ve discussed in a previous post, Employee Warning – GlassDoor Posts May Not Always Be Anonymous (in which we discuss the rare case where the employer triumphs). This week, CNN Money reported on another new app, “Blind,” for employees to make these anonymous postings.
Continue Reading Another Anonymous Employee Posting App? Watch Out!

Here we are again on the brink of another possible federal government shutdown, and employers may be wondering how it may impact them. The last time, during the 2013 federal government shutdown, we provided a summary of the shutdown contingency plans for the major employment-related agencies – the Department of Labor (DOL) (which includes the Occupational Safety and Health Administration (OSHA) and the Wage-Hour Division (WHD)), the National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC).  So we thought we’d provide you with an updated summary of these plans, which set forth what the agencies will and will not do if there is an actual shutdown.
Continue Reading EEOC, NLRB and DOL Shutdown Contingency Plans – The 2018 Edition

The new Trump National Labor Relations Board issued two more important decisions last week that reverse positions taken by the Obama Board. In PCC Structurals, Inc., the Board rejected  the “overwhelming community of interest” standard for establishing an appropriate bargaining unit. In Raytheon Network Centric Systems, the Board reinstated the standard for determining when there is a change in the terms of employment that triggers the duty to bargain. 
Continue Reading NLRB Overturns “Overwhelming Community of Interest” Standard and Duty to Bargain Principle