Employer Law Report

Tag Archives: NLRA

NLRB invites businesses to provide feedback on when an employee’s offensive comments should lose the protection of federal labor law

The National Labor Relations Board (NLRB or Board) invited interested parties to submit feedback about when an employee’s offensive or inappropriate workplace comments should lose the protection of the National Labor Relations Act (NLRA). Specifically, the NLRB is inviting employers and other parties to submit briefing about whether it should reconsider its standards for determining whether Section 7 of the NLRA protects employees who make “profane outbursts and offensive statements of a racial or sexual nature…during the course of otherwise protected activity.” By way of background, Section 7 of the NLRA gives employees the right to engage in “concerted activities …

NLRB sides with Kroger’s action to remove union representatives from company property

On Sept. 6, 2019, the National Labor Relations Board (NLRB) granted a significant win to employers, ruling that businesses can lawfully limit the rights of nonemployee union supporters to access company property that is otherwise open to the public. In a 3-1 decision, the Board ruled that Kroger did not violate the National Labor Relations Act (NLRA) when it removed nonemployee union supporters from the parking lot of a Kroger store. The decision overruled a 2016 ruling by an NLRB administrative judge that Kroger had illegally barred two nonemployee representatives of the United Food and Commercial Workers Union from petitioning …

Misclassifying employees as “independent contractors” does not violate NLRA

The decision to classify a worker as an independent contractor, rather than as an employee, carries significant legal implications. Misclassifying employees as independent contractors can result in employer liability for unpaid payroll taxes, unpaid unemployment and workers’ compensation premiums, and responsibility for failure to provide the various rights afforded under employment laws to employees but not to independent contractors. A careful approach, including legal advice, is always wise in evaluating whether a worker can properly be classified as an independent contractor. However, the National Labor Relations Board (NLRB) has taken one element of risk out of the decision.

In a …

NLRB establishes new standard for evaluating employee handbook policies

The new Republican-led National Labor Relations Board (NLRB) has wasted little time in reconsidering decisions made during the Obama Administration. In its Boeing, Inc., decision, announced on Thursday, Dec. 14, 2017, the board overturned its Lutheran Heritage Village-Livonia decision that has guided its evaluation of employee handbook policies for the past 13 years and most recently has come under intense criticism from the employer community for chipping away at common employee handbook policies.

Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute

In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the …

“Can you hear me now?” NLRB judge calls on Verizon to remove restrictive handbook policies

Employers beware…it may be time yet again to review your handbooks to make sure that your policies do not violate the National Labor Relations Act (NLRA). A National Labor Relations Board (NLRB) judge recently ordered several Verizon Wireless stores to strike certain employee handbook policies.  In all, the decision means Verizon Wireless must strike 10 employee handbook policies that violated the NLRA because they could be read to chill employees’ rights to engage in protected concerted activity.

Section 7 of the NLRA grants employees the right to engage in concerted activity for the purpose of mutual aid and protection. …

NLRB’s Dish Network decision: A sign of things to come for employer arbitration agreements?

As he tends to remind us on a regular basis, Donald Trump won the presidential election back in November 2016. But that doesn’t mean that National Labor Relations Board (NLRB) policy turns on a dime. The Board has only three members at this time with Member Philip Miscimarra (R) in the role of Acting Chairman still outnumbered by Members Pearce (D) and McFerran (D). With confirmations of even cabinet level nominations still pending, it could be well into 2018 before a full complement of Board Members are in place and the Republicans take the majority.

Although the Board’s recent decision …

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 …

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 General Counsel Announces Priority Matters To Be Submitted For Advice

On February 25, 2014, NLRB General Counsel, Richard F. Griffin, Jr., issued the first General Counsel Memo of the year (GC 14-01) identifying cases that the NLRB’s Regional Directors must refer to the NLRB’s Division of Advice for “centralized consideration” and to “enhance our ability to provide a clear and consistent interpretation of the [National Labor Relations] Act.” The list is divided into three groups, two of which should be of particular concern to employers. The first group includes issues that reflect General Counsel initiatives or areas of the law and labor policy that are of “particular concern” …

The National Labor Relations Board Continues Its Hostility Toward Class Action Waivers in Arbitration Agreements

Class action waivers in arbitration agreements, when used correctly, are an extremely effective tool for employers to reduce exposure on employment claims.  So, naturally, the current National Labor Relations Board (NLRB) will not support them.  Having lost before the Fifth Circuit Court of Appeals on their argument that Section 7 and Section 8 of the National Labor Relations Act (NLRA) categorically prohibit explicit class action waivers, the NLRB remains undeterred.  Here is what the NLRB is up to now.

Background

As brief background, Section 7 of the NLRA, 29 U.S.C. § 157, grants most private-sector employees in the United States …

Fifth Circuit Court of Appeals Knocks Down NLRB Decision: And, in Doing So, Supports Employer Effort to Avoid Class Action Claims

One of the most significant risks to business in recent years has been the proliferation of class action employment-related lawsuits. Class action claims have been especially popular with plaintiff’s lawyers pursuing federal Fair Labor Standards Act wage claims. A class action lawsuit can mean huge costs for defense and damages. Some employers have attempted to manage the risk by having employees sign agreements requiring that they pursue employment law claims against the company in arbitration, rather than in court. Sometimes employers include in the arbitration agreement a specific waiver of the right to pursue class action claims in court or …

NLRB Issues Third Facebook Firing Decision (Employers 1, Employees 2). Would Bettie Page Roll Over In Her Grave?

The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging in what the Board deemed protected concerted activity after the employees posted messages on Facebook complaining about their working conditions. The Board also held the store violated the NLRA by maintaining a “Wage and Salary Disclosure” rule in its handbook prohibiting employees from disclosing information …

NLRB Posting Rule Lifted – At Least For Now

In an order issued today, the Circuit Court of Appeals for the District of Columbia granted a temporary injunction, barring the NLRB from enforcing its posting rule, at least while the appeal before that Court is pending.

We reported yesterday about the decision by a federal District Court in South Carolina invalidating the NLRB posting rule. As we noted, that decision is in contrast with an earlier decision by a federal District Court for the District of Columbia upholding the NLRB’s right to impose the rule. The D.C. District Court decision is currently on appeal to the Circuit Court of …

NLRB Posting Rule Struck Down by South Carolina Court

Friday the 13th was unlucky for the National Labor Relations Board. A Federal District Court for South Carolina ruled on Friday that the NLRB overstepped its authority by issuing a rule requiring employers to post notices. In Chamber of Commerce of the United States v. NLRB, Case No. 2:11-CV-02516-DCN (D.S.C. April 13, 2012), Judge Norton considered the limits on the rights of federal agencies to impose obligations which are different from those Congress has imposed by law. The NLRB was created by Congress under the National Labor Relations Act (NLRA). Relying on the language of the NLRA, Judge Norton …

NLRB Posting Rule Set To Take Effect April 30

None of the various legal challenges to the controversial NLRB posting rule have yet been effective. As things stand now, with only a few very narrow exceptions, all employers will be required as of April 30 to post a notice in the workplace advising employees of their rights regarding unions and their rights to discuss wages and other working conditions with co-workers (see our previous blog posts: "NLRB Issues Final Rule Requiring All Employers to Post Notice About Union Organizing Rights," and "NLRB Posting Requirement Delay – New Date January 31, 2012.")  As we reported recently, the federal …

NLRB Activism Continues To Gain Steam

While the NLRB Posting Rule, which is scheduled to become effective April 30, 2012, has rightly received much attention from concerned employers and employer advocacy groups, it isn’t the only thing non-union businesses should be concerned about in the coming weeks.

Last Friday, March 23, 2012, an NLRB spokesperson confirmed that the NLRB intends to also launch a website in April that will provide information to non-union workers about their rights under the National Labor Relations Act that includes information far beyond their rights with respect to forming a union. According to the spokesperson, the website will focus on educating …

Arguments Begin In Legal Challenges to NLRB Posting Rule

As we reported previously, the National Labor Relations Board ("NLRB") issued a rule in August requiring all employers to post workplace notices about employee rights to join a union. This effort by the NLRB to require posting about union organizing rights in all workplaces has caught the attention of the employer community more than any NLRB action in recent memory. The rule reaches into the workplace of all employers except for those few which are outside of the NLRB’s jurisdiction. [See our earlier post that outlines NLRB jurisdiction]. Briefly, if you are wondering if you are covered, you probably are …

NLRB Posting Requirement Delay – New Date – January 31, 2012

We reported earlier about the NLRB notice-posting rule, which was to take effect on November 14, 2011. The rule applies to all companies subject to NLRB jurisdiction. (See discussion below of NLRB jurisdiction.) The rule requires companies to post in the workplace notices to employees about their rights to join a union. Not surprisingly, the proposed rule has generated a great deal of attention and some controversy. Recently, we reported on the first lawsuit, filed by the National Association of Manufacturers, to challenge the NLRB’s right to impose this rule. Since then, a number of other lawsuits have been filed, …

UPDATE: NLRB Releases Union Organizing Rights Poster on Website; Challenges to Rule Begin

As we noted last month, most private sector employers — regardless of whether they are unionized — will be required, beginning November 14, 2011, to post a notice advising employees of their rights under the National Labor Relations Act. Copies of the poster are now available for downloading and printing on the NLRB website here.

But, don’t put that poster up a second before you have to. A lawsuit filed by the National Association of Manufacturers against the Board seeks to enjoin enforcement of the rule on the ground that it exceeds the Board’s statutory authority. We will …

NLRB Issues Final Rule Requiring All Employers to Post Notice About Union Organizing Rights

On December 27, we wrote a blog post regarding the NLRB proposed rule-making to require all employers to post notices advising employees of their rights to engage in union organizing. After a period of public comment, during which about 7,000 responses were submitted to the NLRB, the NLRB has now issued its final rule requiring the posting.

Effective November 14, 2011, all private sector companies covered by the National Labor Relations Act are required to post in the workplace a specific notice advising employees of their rights under the National Labor Relations Act to engage in union organizing, to bargain …

NLRB Befriends Unions Again, and Again

No, this is not another comment on the much-publicized and highly politicized complaint filed by the National Labor Relations Board ("Board" or "NLRB") against Boeing for allegedly moving work from Washington to South Carolina in retaliation for protected union activity. Rather, it pertains to Sheet Metal Workers Local 15 (Brandon Medical Center) and Auto Workers Local 376 (Colt’s Mfg. Co.), decisions issued by the Board on May 26 and May 27, 2011, respectively.

Although these cases involved entirely different fact situations, in each instance a panel of the NLRB rejected findings of an administrative law judge who, after hearing …

Sixth Circuit Holds That Ohio Wrongful Termination Claim Pre-Empted By NLRA

In a decision issued this morning, the Sixth Circuit held that an Ohio complaint alleging wrongful termination for discharging employees for unionizing activities was pre-empted by the National Labor Relations Act (“NLRA”).  Specifically, the court in Lewis v. Whirlpool Corporation upheld the dismissal of the case by the district court based on a lack of subject matter jurisdiction.   

The plaintiff argued that because he had been employed as a supervisor, he was not an employee covered by the NLRA. The court noted, however, that a supervisor has a viable claim under the NLRA when he is terminated or otherwise disciplined for …

U.S. Supreme Court Holds NLRB Had No Authority To Issue Decisions from January 2008 to March 2010

As an update to my earlier blog postings (Supreme Court Agrees to Consider Legality of Two-Member NLRB Rulings, Second Circuit Agrees with First and Seventh Circuits that the Two-Member NLRB Had Authority to Issue Opinions, and Two Conflicting Federal Circuit Court Decisions Issued Today Call Into Question all NLRB Opinions Issued in the Past Year), last Thursday, the Supreme Court settled the issue of whether the two-member National Labor Relations Board (NLRB) that existed from January 1, 2008 to March 26, 2010 had the authority to issue binding opinions. 

In a surprise 5-4 decision, the Supreme Court …

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