Written by Jeremy Mittman and Justine Wallace Can an employer ask employees to keep interviews conducted in the context of a workplace investigation confidential? Yes, says the NLRB, in a helpful ruling for employers– that applies to both unionized and non-unionized workplaces. A majority 2-1 decision by the National Labor Relations Board (the “Board”) held that an employer did not violate federal law after instructing … Continue reading The NLRB Approves Confidentiality Rule with Regard to an Ongoing Employer Investigation
Written by Jeremy Mittman and Louise Truong The National Labor Relations Board (the “Board”) frequently evaluates employer policies regarding whether they violate employees’ rights to unionize under Section 7 of the National Labor Relations Act (“NLRA”). As such, it is essential for employers, including those who do not have union employees, to consider the Board’s decisions when drafting and reviewing their policies and handbooks. Recently, … Continue reading The NLRB Approves Non-Disparagement, Non-Solicitation, and Email Workplace Rules
Written by Jeremy Mittman and Hilary Feybush Last week, the National Labor Relations Board (“Board”) issued a decision making it easier for employers to lawfully discipline or terminate employees who make abusive or offensive statements – including profane, racists, and sexually unacceptable remarks – in the course of activity that would otherwise fall under the protection of the National Labor Relations Act (“NLRA”). In … Continue reading TAKE THAT JOB AND SHOVE IT! NLRB ADOPTS NEW STANDARD FOR ADDRESSING OFFENSIVE STATEMENTS IN THE WORKPLACE
NLRB’s General Counsel Issues Advice Concerning COVID-19
Written by Jonathan Turner
As federal, state and local measures are being enacted to help curb the spread of the Coronavirus, the General Counsel for the National Labor Relations Board (“NLRB”) recently issued a memo intended to assist the public, employers and unions in analyzing the impact that emergency decision-making by unionized employers have on collective bargaining obligations. The memo issued on March 27, 2020, and is directed to the Regional Directors, Officers-in-Charge and Resident Officers of the several NLRB field offices throughout the country. The General Counsel has the sole statutory authority to determine whether to issue an unfair labor practice complaint for alleged violations of the National Labor Relations Act, including violations based on an employer’s alleged failure to bargain with a union over changes in business operations affecting employees represented by the union. Continue reading “NLRB Advice on COVID-19”
Written by Jeremy Mittman
Why This Matters
On Tuesday, the National Labor Relations Board (“NLRB” or the “Board”) announced that, on February 26, 2020, it will issue its final rule governing joint-employer status under the National Labor Relations Act (“NLRA”). Under the NLRB’s final rule, an entity may be considered a joint employer of a separate employer’s employees only if the two share or co-determine the employees’ essential terms and conditions of employment. “Essential terms and conditions of employment” are specifically defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction. The Board’s intent in issuing the final rule is to restore the joint-employer standard that was applied for many years prior to the Board’s 2015 decision in Browning-Ferris.
The final rule will be effective April 27, 2020. The NLRB’s Fact Sheet regarding the final rule is available here.
Written by Jonathan Turner
If you regularly deal with union concepts, read on! Otherwise you may find this a tad wonky…
After some three years into the current administration, the NLRB (“Board”) has issued new election rules that reverse or modify rules put in place during the Obama administration. The Obama era rules, commonly referred to as the “fast track” or “quickie” election rules, were the subject of controversy and debate between the business community and organized labor prior to their becoming law in 2014. The stated policy objectives for the Obama era rules were “to simplify and modernize” the Board’s election procedures for determining employee desire for union representation, establish “greater transparency and consistency” in administration of those procedures, and provide for a more “fair and expeditious resolution” of NLRB election cases; however, the business community objected to the Obama era rules primarily because they imposed procedural and substantive limits on the types of issues that can be adjudicated in a pre-election hearing, and shortened the time frame within which such hearings were to occur.
The new rules became effective December 18, 2019. Set forth below is a summary of the more significant aspects of the new rules and how those rules differ from those previously in place. Continue reading “NLRB Issues Changes to Representation Case Procedures”
Written by Jonathan Turner
The NLRB under the current administration continues to issue decisions that factor in legitimate business considerations of employers when evaluating rules that are alleged to restrict employee protections under the NLRA. One such recently issued decision, LA Specialty Produce Company, 368 NLRB No. 93 (October 10, 2019), may have particular significance to many of MSK’s clients because it addresses an important issue on which we frequently have consulted with clients in the past — restrictions on communications responsive to inquiries from the media.
Why This Matters
On May 14, the National Labor Relations Board (“NLRB”) released an advice memorandum declaring that Uber drivers are independent contractors (not employees) and are, therefore, not eligible to unionize. The memo, dated April 16, 2019, said the drivers are independent contractors under the NLRB’s recently-adopted SuperShuttle test (see here), because they have “significant entrepreneurial opportunity” while driving for Uber. The NLRB’s standard only applies in the labor context. It does not apply to California wage claims and lawsuits, where the California Supreme Court has adopted the ABC Test set forth in Dynamex (see here). Continue reading “Hit The Road, Jack: Uber Drivers are Independent Contractors According to NLRB”
On July 13, 2018, the National Labor Relations Board (NLRB) released seven new memos from its Division of Advice, which is part of the NLRB’s Office of the General Counsel. The memos resulted from requests for guidance by various NLRB Regional Directors on cases their offices were handling. The General Counsel’s office can release advice memos to the general public at its discretion after a case has been closed. The earliest of the seven memos was issued in 2014 and the latest is dated June 14, 2018. Continue reading “NLRB’s General Counsel’s Office Releases Seven New Advice Memos”
The following was written collectively by our Labor & Employment Department.
A. The “New” National Labor Relations Board Decisions and Memos
As of this past fall, following confirmation of Marvin Kaplan and William Emanuel as new members of the National Labor Relations Board (“NLRB”), that agency has obtained a 3-2 Republican majority for the first time in almost a decade. As expected, in the few short months thereafter, the Trump era NLRB has been on a path to reverse many of the decisions and actions taken by the Obama era NLRB. Here are the more significant NLRB decisions that fall in this category. Notably all were decided this past December.
1. NLRB Establishes New Standard Governing Workplace Policies
On December 14, 2017, in The Boeing Co., 365 NLRB No. 156, the NLRB overturned its standard for evaluating the legality of employee handbook policies. The standard that was overruled was established in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004). In Lutheran Heritage, the NLRB stated that a policy is illegal if employees could “reasonably construe” it to bar them from exercising their rights to engage in union or other concerted activities under the NLRA. In the Boeing case, the administrative law judge applied the Lutheran Heritage rule to Boeing’s workplace policy restricting workers’ use of camera-enabled devices and similar recording devices such as cellphones on company property violated the NLRA. Although Boeing’s “no-recording” policy would have violated the NLRA under Lutheran Heritage, the NLRB in Boeing stated that Lutheran Heritage’s “reasonably construe” standard entails a “single-minded consideration of NLRA-protected rights, without taking into account any legitimate justifications associated with policies, rules and handbook provisions.” Continue reading “National Labor Relations Act”