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A recent New York Times article highlighted the use and, frankly, abuse of Training Repayment Agreement Provisions (TRAP – oooooh, good acronym!), also known as stay-or-pay provisions. Under a TRAP, if an employee leaves their job before a certain specific amount of time has passed, they are required to pay back monies ostensibly tied to the costs of training, or finding a replacement, or even lost profits. The use of TRAPs appears to have significantly increased in recent years, and the Biden Administration is paying attention – and it is not happy.Continue Reading “Stay-or-Pay”? A Potential TRAP for Employers!

Well I think we all recognize that Artificial Intelligence (AI) has created some seismic shifts in the way things can be done, including in the workplace (and I covered many of the risks and concerns of generative AI for employers in our June 2023 E-Update). Governments at all levels are taking action to try to put guardrails on the use of AI. And now, President Biden has signed an Executive Order on “Safe, Secure and Trustworthy Artificial Intelligence,” as summarized in a Fact Sheet. This is a wide-ranging EO, but one of the areas it specifically addresses is the impact on workers. Continue Reading What Impact Will President Biden’s AI Executive Order Have in the Workplace?

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?

In a move that surprised absolutely no one, the National Labor Relations Board has reversed course on yet another issue – the standard for determining whether an individual is an employee, who is subject to the National Labor Relations Act, or an independent contractor, who is not. The Board’s decision will once again make it harder to establish independent contractor status.Continue Reading U-Turn! NLRB’s “Modified” Independent Contractor Standard Favors Findings of Employee Status

In (rare) good news for unionized employers, the U.S. Supreme Court has held that the National Labor Relations Act (NLRA) does not insulate a union from tort claims that it intentionally destroyed employer property during a strike.Continue Reading Supreme Court Rules that Unions May Be Sued for Strike Damage to Employer Property

A Regional Director of the National Labor Relations Board found merit to an unfair labor practice charge alleging that the University of Southern California (USC) misclassified football and basketball players as student-athletes rather than employees and maintained unlawful work rules. In addition, the Complaint will allege the Pac-12 Conference and the NCAA are joint employers of the USC athletes. The charge was filed on behalf of the athletes by the National College Players Association, a college athlete advocacy group.
Continue Reading Are College Athletes “Employees” Under Federal Labor Law? We Are About to Find Out…

The National Labor Relations Board (“NLRB” or the “Board”) took significant steps to limit the power of property owners to restrict contractors’ workers access to their property in a 3-2 decision on Friday. In Bexar County II, the Board reverted to the test articulated in New York New York Hotel & Casino, 356 NLRB 907 (2011), concluding that property owners may only restrict access by contractors’ workers when the workers’ activities “significantly interfere” with the use of the property, or where the property owner has “another legitimate business reason” to remove them from their property.
Continue Reading The NLRB’s Reinstatement of a Worker-Friendly Standard for Property Access

On Thursday, the National Labor Relations Board (NLRB or the Board) reaffirmed its Johnnie’s Poultry standard for analyzing an employer’s questioning of employees in preparation for NLRB proceedings. Employers must provide a list of assurances to employees and the failure to recite even one of the assurances shall render such questioning per se (or automatically) unlawful.
Continue Reading NLRB Reaffirms Safeguards for Questioning Employees in Preparation for NLRB Proceedings

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