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
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”
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.
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 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.
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”