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 Extraordinary Employee Misconduct: High-Speed Highway Harassment
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 Does Holding Unions Accountable Help Employers?
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
Co-Author Nick Vogt*
In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the United States Supreme Court held that public sector unions may not assess union fees against non-union employees covered by a collective bargaining agreement. In so holding, the Supreme Court overturned its decades-old ruling in the case of Abood v. Detroit Board of Education, in which the Court held that public sector unions could assess fees regardless of membership status, because all employees benefit from union collective bargaining agreements regardless of union membership.
Continue Reading Supreme Court Holds that Public Sector Unions May Not Assess Union Fees Against Non-Union Employees
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
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
As my colleagues know, I have been unbelievably frustrated over the past eight years about the National Labor Relations Board’s (overly) aggressive pro-union approach. As I have previously complained, during this period, the NLRB has taken unreasonable and illogical positions on issues that for many years had been considered settled and balanced between the interests of employees and employers. These include issues we’ve previously blogged about, including handbook rules (you can’t prohibit recording in the workplace, you can’t prohibit employees from disclosing confidential personnel information), employee conduct (you must tolerate racist and sexist picket line conduct that violates Title VII), and joint employer status (which is found in almost every case, under the NLRB’s test).
Continue Reading The Light at the End of the NLRB’s Tunnel?