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Today, October 26, 2023, the National Labor Relations Board issued a final rule that rescinds and replaces the Trump Administration’s 2020 rule establishing the current test for determining whether two entities are joint employers. This new rule 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 Returns to a More Expansive Joint Employer Standard

As most of us know, Hollywood is striking (or more specifically, the members of the writers’ and actors’ unions). Some of you may have seen media reports, like this CNN article, about the unions filing unfair labor practice (ULP) charges with the National Labor Relations Board over unsafe picketing conditions. Which may cause some of you to wonder – what is an employer’s responsibility with respect to those conditions? Continue Reading Are Employers Supposed to Protect Striking Employees?

When I was first practicing law, I quickly learned that the answer to many legal questions under National Labor Relations Act depends on which Board’s decision you pick. If the Board has a majority of Members (the name for those people who issue decisions) appointed by a Republican President, I was likely to find an answer that would please my management clients (and the partner who asked me to do the research). By contrast, if the Board’s majority was comprised of appointees named by a Democrat President, the outcome would vex my clients. In other words, the “rules of the game” shift with administrations.Continue Reading Say What? NLRB Rules Employees May Tape Record Others in Violation of State Law.

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?

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

The National Labor Relations Board (“NLRB” or the “Board”) announced a Final Rule on joint-employer status under the National Labor Relations Act that retreats from the broad expansion of the joint employment principle in recent years and returns to its prior, more restrictive standard, which it describes as “carefully balanced.” This Rule will take effect on April 27, 2020.
Continue Reading NLRB Issues Final Joint Employer Rule, Making Such Findings Less Likely

In its unpublished decision in Bloomsburg Care and Rehabilitation Center, the National Labor Relations Board (NLRB or Board) expressed a willingness to reconsider, and likely expand, what constitutes an alleged supervisor’s ability to “effectively recommend” discipline. The National Labor Relations Act (NLRA) provides that if an individual performs one of several functions, including the ability to discipline, or can “effectively recommend” one of these functions (e.g., discipline or hire), the individual is a supervisor. Under current law, which was applied by one of the Board’s Regional Directors, the Board will not find that an individual effectively recommends discipline if the recommendation is reviewed or independently investigated by upper management.
Continue Reading NLRB To Expand Definition of Effective Recommendation of Discipline?

Ah, the perils of “reply all.” We’ve all been there – but did you know that doing so can implicate the National Labor Relations Act? This was the case in Mexican Radio Corp. v. NLRB. In August 2015, a restaurant hired a new general manager. Soon after this hire, employees lodged numerous complaints with the restaurant’s director of operations about the general manager’s alleged demeaning treatment of employees, as well as the restaurant’s unsanitary conditions.
Continue Reading Nothing Good Comes From Hitting “Reply All”

In May of 2013, some Walmart employees boarded buses bound for Bentonville, Arkansas to attend the Company’s annual shareholders meeting. The buses formed a caravan, picking up employees at Walmart locations on the way. The employees handed strike letters to their managers before departing.

The caravan was dubbed the “Ride for Respect.” It was organized by OUR Walmart, a group formed with the assistance of the United Food and Commercial Worker Union (UFCW). Once in Bentonville, the employees held demonstrations, attended the shareholder meeting, and engaged in other activities to publicize their grievances.
Continue Reading Ride for Respect: Intermittent “Hit and Run” Strike or Presumptively Protected Work Stoppage?