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Showing 23 posts in NLRA.

Unpacking the Supreme Court's Janus Decision

The United States Supreme Court issued its long-anticipated decision in Janus v. American Federation of State, County and Municipal Employee Council 31 on June 27, 2018.  The five to four majority held that requiring public-sector employees who are not union members to pay union agency fees violates the First Amendment.  In the final paragraphs of the majority opinion, the Court made it clear that in the context of a public sector employer-union relationship, non-member employees in the bargaining unit must provide express consent before union dues can be deducted from their paychecks.  Janus' implications for public employers are wide-ranging. However, the immediate question that unionized public-sector employers must address is how to administer existing agency fee provisions in collective bargaining agreements and distinguish between union members and non-members, whose express consent is now required before union dues can be deducted from their paychecks.  It is important to note that this decision is grounded in constitutional principles and only applies to public sector unionized employees. More ›

Lawful, Unlawful, or It Depends? NLRB Issues New Guidance on Employer Policies Affecting Section 7 Rights

Earlier this month, the National Labor Relations Board's (NLRB) General Counsel issued Memorandum GC-18-04 providing guidance on handbook rules in light of the Board’s Boeing Company decision. In Boeing, the Board reevaluated when a seemingly neutral work rule, handbook rule, or employment policy violates the rights of workers granted by Section 7 of the National Labor Relations Act (NLRA). In doing so, it adopted a new test balancing the negative impact a given rule may have on an employee’s ability to exercise his or her Section 7 rights versus the employer’s right to maintain a disciplined and productive workplace. It also laid out three categories of rules: those that are always lawful, those that are usually always unlawful, and those it depends-type rules falling into the middle category. The GC’s guidance sorts common workplace policies into these three buckets. More ›

NLRB Agenda Includes Setting a Regulatory Joint Employer Standard

We have written previously regarding the saga of the National Labor Relations Board and joint employer status here, here, and here. In short, the question of when a business is responsible for another business’s employees has been in flux for a few years, affecting franchisee/franchisor relationships, businesses that utilize temporary employees, parent and subsidiary companies, and similar arrangements. More ›

Lessons for Employers in the Case of a Former Google Software Engineer Fired for Violating Company Anti-Discrimination Policies

Earlier this week, an NLRB attorney issued an advice memo concluding that software giant Google did not violate Section 7 of the National Labor Relations Act ("NLRA"), when the company terminated software engineer James Damore, who penned a controversial memo criticizing Google’s diversity initiatives. The memo, and Google's swift reaction, were widely covered in the press and speculation followed questioning whether Google's response was appropriate or whether it would face a challenge.   More ›

In Victory for Employers, NLRB Overrules Browning-Ferris Joint Employment Test

On December 14, 2017, the National Labor Relations Board (Board) overruled the standard for joint employment set forth in Browning-Ferris and returned to longstanding, prior principles governing the determination of joint-employer status. With a new majority, the Board held “joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control); the control must be “direct and immediate” (rather than indirect), and joint-employer status will not result from control that is “limited and routine.”  The Board made clear it intended to align the determination of joint-employer status with the holdings of numerous federal and state courts. Although finding Browning-Ferris well-intentioned, the Board identified five fundamental flaws that warranted reversal. The Board’s decision is being widely viewed as a victory for employers as it removes ambiguities related to control and clarifies the standard for determining joint employment. More ›

Hold the Mayo: Jimmy John's Workers' Disparaging Statements Not Protected by the NLRA Says 8th Circuit

How far can employees go during a labor dispute to make their case to the public? For years the National Labor Relations Board (NLRB) has granted employees a surprising amount of leeway, so long as their statements were not made with malicious intent and pertained to an ongoing labor dispute. In other words, employees could go quite far. Fortunately for employers, the 8th Circuit Court of Appeals recently tamped down this enthusiasm and redirected the NLRB to long-standing Supreme Court precedent. More ›

Management Rights Clause Does Not Give Management Right to Skip Bargaining Over Non-Compete and Confidentiality Agreement D.C. Court of Appeals Says

In Minteq v. NLRA, the United States Court of Appeals for the District of Columbia Circuit held an employer committed an unfair labor practice under Section 8 (a)(5) by failing to notify and bargain with a union over its requirement that new employees sign a non-compete and confidentiality agreement as a condition of employment. More ›

Amex Employment Arbitration Policy held Unlawful by NLRB

Amex Card Services Company ("Amex") operates a call center in Phoenix, AZ.  Amex required all new hires to sign an acknowledgement form acknowledging receipt and understanding of its Arbitration Policy as a condition of employment.  The policy mandated final and binding arbitration to resolve all employment-related disputes.  The policy also mandated that all claims subject to arbitration be submitted on an individual basis.  More ›

NLRB has wide Discretion to Delineate Parameters of Bargaining Unit

Despite its efforts to create a larger bargaining unit comprised of allegedly similarly-situated employees, an Alabama nursing home operator recently learned the hard way about the NLRB's "wide" discretion in determining who may be included in a bargaining unit. More ›

Private Facebook Message not Concerted Activity Under NLRA

In this case, an employer terminated a medical office worker based upon a private Facebook message she sent to nine other current and former employees. The message contained derogatory comments about the employer but focused on one supervisor and another returning supervisor she disliked. The employee also expressed a desire to be terminated. No one copied on the message responded directly to the message content at issue. Another employee who received the message gave it to the employer. The employer terminated the author of the message on the grounds that it was obvious the employee no longer wished to work there and disliked the employer and, given these feelings, the employer was concerned about the employee’s interactions with patients.  More ›

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