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

In its unpublished decision in Bloomsburg Care and Rehabilitation Center, the National Labor Relations Board (NLRB or Board) expressed a willingness to reconsider, and likely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

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

As those of you who pay attention to the National Labor Relations Board know (which should be all employers, since the National Labor Relations Act applies to unionized and non-union employers alike), the issue of social media policies is an area particularly fraught with confusion. In many circumstances, the Board has found such policies – or certain provisions in such policies – to unlawfully restrict employees’ rights under the Act to communicate about the terms and conditions of their employment. Thus, we labor practitioners rabidly follow each pronouncement of the Board or its General Counsel on this issue, trying to ascertain the legal parameters of such policies.
Continue Reading

The National Labor Relations Board has now addressed the use of mandatory arbitration agreements following the U.S. Supreme Court’s 2018 decision in Epic Systems v. Lewis, which upheld the enforceability of arbitration agreements containing waivers of the right to bring class or collective actions over employment-related disputes, rejecting the NLRB’s then-position that such waivers violate the National Labor Relations Act (NLRA), as discussed in our prior E-lert.
Continue Reading

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

Here’s another in my sometimes series of crazy things that employees (and, in this case, the National Labor Relations Board) do. Although the Board initially thought that employees playing driving games at highway speeds was protected activity (?!!), it has (fortunately for the rest of us drivers) rethought that position after being slapped down by the U.S. Court of Appeals for the D.C. Circuit.
Continue Reading

The General Counsel (GC) of the National Labor Relations Board issued a memo on October 24, 2018 that focused on the unions’ duty of fair representation to their bargaining unit members. Numerous commentators, including management-side attorneys (as I am), trumpeted the fact that the Board is holding unions accountable. There seemed to be a feeling that, after years of employers being attacked by a left-leaning Board, the playing field is being re-leveled. But, as my partner Mike McGuire pointed out, is this really good for employers?
Continue Reading