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8th Circuit upholds unfair labor practice findings in Jimmy John’s “Sick Sandwich” case

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by …

DOL’s final “Persuader Rule” delivers another coup to unions

Thinking about having an employment relations consultant or attorney meet with your managers and supervisors for a union avoidance session? If so, you may want to have it scheduled to take place prior to July 1, 2016. According to a new rule issued by the Department of Labor (DOL), any union avoidance seminars conducted for supervisors or other employer representatives after July 1, 2016 must be reported to the DOL on government-issued forms.…

Lawyers’ FLSA advice may be discoverable

To avoid an award of liquidated damages in an Fair Labor Standards Act (FLSA) action asserting that a defendant willfully violated the FLSA’s overtime provisions, the defendant must prove that it “acted in subjective ‘good faith’ and had objectively ‘reasonable grounds’ for believing that the acts or omissions giving rise to the failure did not violate the [statute].” FLSA defendants frequently therefore assert that they sought and followed the advice of counsel in assessing whether overtime payments were required under the FLSA, which results in an implied waiver of the attorney-client and attorney work product privileges. The scope of that …

DOL joins NLRB in making joint employment an enforcement priority

In prior posts (Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes,” and ; NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals ), we wrote about decisions by the National Labor Relations Board (NLRB) that expand the definition of joint employment and broaden potential liability for violations of the National Labor Relations Act. Last month, the U.S. Department of Labor (DOL) joined the NLRB in making joint employment an enforcement priority when it issued an Administrator’s Interpretation and …

Seven employment law trends to keep your eyes on for 2016

2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased …

NLRB General Counsel Advice Memo absolves employer for not bargaining over use of GPS devices to track employee

Wait…. What?

Yes, in Shore Point Distribution Co., Inc., the NLRB’s General Counsel’s Office issued an Advice Memorandum yesterday (dated October 15, 2015) in which it stated that an employer did not violate Section 8(a)(5) of the National Labor Relations Act by failing to bargain with union before installing a GPS device on an employee’s truck.

In March 2015, the employer became concerned that one of its employees was taking more time than other drivers to complete the same routes. It therefore hired a private investigator to follow and videotape the driver on his routes. The employer placed a …

Second Circuit upholds NLRB finding that Triple Play Sports Grille unlawfully terminated employees for Facebook postings

Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

In its decision, the Second Circuit …

Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”

Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.

The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, …

Another Federal District Court upholds NLRB expedited election rules

In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend …

U.S. Supreme Court grants certiorari in a case challenging the constitutionality of fair share fees for public-sector unions

In what looks to be an ominous development for public-sector unions, the United States Supreme Court, on June 30, 2015, granted a petition for certiorari by the plaintiffs in Friedrichs v. California Teachers Association, a case out of the Ninth Circuit challenging the constitutionality of requiring public-sector workers who opt out of union membership to still pay union dues as part of “fair share fee” arrangements in collective bargaining agreements. It is ominous because a little over one year ago in the Supreme Court’s 2014 decision in Harris v. Quinn, Justice Alito wrote a majority opinion that blasted …

NLRB files complaint against postal service for not bargaining with union over effects of data breach incident

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”) apparently think that there should be an additional step when the data breach involves the personal information of employees who are covered by a collective bargaining agreement – bargaining over the effects of the data breach on, and the remedy to be provided to, the …

The NLRB is prepared for its new election rule, are you?

The NLRB’s controversial “quickie election” rule is slated to take effect April 14, 2015. That’s next week! Two lawsuits filed by employer groups in January to block the rule are pending in separate federal courts of appeals. However, absent a “hail Mary” ruling by one of these courts, employers have to ask themselves if they are prepared for the NLRB’s new election rule that takes effect next Tuesday.

The NLRB’s General Counsel (“GC”) has taken further steps to ensure that his office is ready. On April 6, 2015, NLRB GC Richard F. Griffin, Jr. issued a 36-page guidance memorandum to …

NLRB: employer unlawfully fired employee for calling supervisor a “NASTY M____ F____ER”

On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”

According to the Board’s majority opinion, a number of service employees at Pier Sixty had expressed interest in union representation, in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner. Two days before the union election, a 13-year employee, who was working as a server at …

NLRB General Counsel provides roadmap for handbook policies

Pushpin marking location on mapIf you have been trying to follow recent NLRB cases and guidance for what is considered legal in handbook policies, and if you feel a little lost, you are not alone. No employer wants handbook policies that a federal government agency considers illegal, but lately it has been a bit of a challenge to figure out what the NLRB will bless and what it will not. There is a little more direction now. The NLRB General Counsel recently issued a 30-page memorandum for guidance on handbook rules. The GC’s stated purpose is to “help employers to review their handbooks and …

More caution from the NLRB to employers with broad handbook prohibitions

Similar to our blog post last week on the National Labor Relations Board (NLRB) General Counsel’s guidance memorandum on employee handbooks, a NLRB administrative law judge (ALJ) last week ruled that two handbook provisions that once passed muster are no longer okay. In a decision that pre-dates the GC guidance memorandum, the ALJ found that a handbook rule prohibiting “[a]ny activity which causes harm to the operations or reputation of” the employer to be overly broad and unlawful. According to the ALJ, an employee could reasonably believe that a work strike or complaint to other employees about wages (including complaints …

NLRB general counsel guidance memo on employee handbook policies is required reading for all employers

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued Memorandum GC 15-04, which he intended to bring some clarity to the NLRB’s sweeping enforcement effort against employee handbook policies his office has deemed to be overbroad and infringing on workers’ Section 7 rights. All employers, particularly those that are not unionized, should take this 30-page memo in hand and compare it to their own employee handbooks to see if any of their policies  might be considered illegal by the NLRB.

The memorandum is split into two parts. In the first part, it compares policies found to …

NLRB “quickie election” rule challenged in court

On December 18, 2014, we posted about the National Labor Relations Board (“NLRB”) proposed rule which will expedite procedures for union representation petitions and elections. The proposed rule is expected to make it easier for unions to successfully organize employees because it will curtail the time available for employers to communicate to employees before the vote occurs.

The proposed rule is to take effect April 14, 2015. On Monday, January 5, 2015, the United States Chamber of Commerce, the National Association of Manufacturers and other management representative groups filed a lawsuit in the United States District Court for the District …

NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals

On Friday, December 19, 2014, the NLRB General Counsel’s office issued complaints against McDonalds and 13 of its franchisees, alleging that they jointly retaliated against workers who participated in the many fast food minimum wage protests that occurred around the country earlier this year. Many business analysts are projecting that a Board decision finding that McDonald’s is a joint employer with its franchisees would rock the fast food industry as well as the many other industries that rely heavily on the franchising model for their economic viability. While the McDonald’s complaints are getting a lot of attention, the Board itself …

NLRB issues final rule on “quickie elections”

The National Labor Relations Board has issued a final rule making significant changes to the procedures leading up to union representation elections. To secure the right to represent a group of employees, unions must first get a showing of interest among an appropriate group of workers. That is typically done by getting employee signatures on authorization cards. With at least a 30% showing of interest, a union can file a petition with the NLRB requesting a representation election. Once the petition is filed there must be a determination of what is the appropriate group of jobs to be included in …

Obama Board declares 30-year old NLRB deferral standard inadequate

On December 15, 2014, the National Labor Relations Board (“NLRB” and “Board”) issued a decision in which the three Democratic-appointed members of the Board struck down the standard that the NLRB has applied for the last 30 years to determine whether to defer to arbitral decisions in cases that also involve alleged violations of Section 8(a)(3) and (1) of the National Labor Relations Act (“NLRA”). The case, Babcock & Wilcox Construction Co., Inc., is broad in scope, because the majority also use it as an opportunity to announce changes to the NLRB’s pre-arbitral deferral standard and to its standard …

NLRB begins its “purple” reign: Board holds employers must permit employee use of company email systems for union organizing

In a decision issued yesterday, the National Labor Relations Board opened the door for employees to use company email to send messages encouraging co-workers to unionize. In Purple Communications, Inc., the Board reversed what had been the law for the past 7 years. In its 2007 Register Guard decision, the Board had allowed companies to prohibit employee use of company email to solicit support for any cause, including union organizing. Reversing course in Purple Communications, the Board now holds that companies must permit the use of company email for solicitation, at least during non-working time, which is generally …

NLRB reinstates food industry employees following work-related complaints

Employees today are certainly more media and marketing savvy than they were even 10 years ago, and they have more tools through which they can reach the public and each other to let their voices be heard. Two recent NLRB cases demonstrate that if employers are too aggressive in attempting to combat these employee communications, they can end up on the wrong end of an unfair labor practice finding.

In Triple Play Sports Bar & Grille, the National Labor Relation Board held that two employees had engaged in protected concerted activity under the National Labor Relations Act (“Act”) when …

NLRB decisions on “mini-unit organizing”

We reported in 2011 about the National Labor Relations Board (NLRB) decision in Specialty Healthcare. That controversial decision opened the door for unions to target small sections of a workforce for union organizing.  For example, in the past, a union trying to organize had to target all similarly-situated employees. In a manufacturing plant that was typically all production and maintenance workers and usually included all blue-collar departments, like shipping and receiving. But, the Specialty Healthcare case opened the door for a union to target smaller groups, like the maintenance group alone, or the shipping and receiving group. Being able …

Reminder to federal contractors about NLRA Employee Rights poster obligations

There is some confusion in the employer community about the obligation to post a notice concerning union organizing rights. Most employers do not have the obligation, but many companies with federal contracts or subcontracts do.

In 2013, as a result of the National Ass’n of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) and Chamber of Commerce v. NLRB, 721 F.3d 152 (D.C. Cir. 2013) decisions, the National Labor Relations Board (NLRB) rule requiring all private employers to post a notice to employees of their rights under the National Labor Relations Act (NLRA) was invalidated. The NLRB …

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