Category Archives: NLRB

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“Do You Kiss Your Mother With That Post?” Second Circuit Rules on Foul Facebook Post about Employer

The Second Circuit Court of Appeals stepped in to support the NLRB’s finding that an employee’s profanity-ridden social media posting about his employer (and his employer’s mother) was not so offensive that it went beyond the protections of the NLRA for union-related activity. This decision again shows the wide latitude given to employees to engage … Continue Reading

Son of Noel Canning? Worst Blog Title Ever? Supreme Court Takes Another Shot at NLRB Vacancy History

How important are the titles “temporary” or “permanent” when it comes to an appointee to run a federal agency? Apparently, very important. On March 21, the U.S. Supreme Court waded back into the messy timeline of President Obama’s attempts to appoint members of the National Labor Relations Board (NLRB). Why Are We Talking About President Obama’s Appointments? … Continue Reading

New Acting Bosses at EEOC and NLRB: Familiar Faces Bringing Big Changes?

In the last several days, President Trump has elevated individuals to head two of the governmental agencies that shape employment law. First, Philip Miscimarra was promoted to be the acting chair of the National Labor Relations Board (NLRB) which is charged with enforcing the National Labor Relations Act. Mr. Miscimarra was originally appointed to the Board by … Continue Reading

Class Warfare: Supreme Court Agrees to Hear Cases on Arbitration Class Action Waivers

The NLRB wants to stop class action waivers in employment arbitration agreements, arguing they violate the National Labor Relations Act. This issue has been raging for several years and divided federal courts. As reported in our November 2, 2015, blog post, the Fifth Circuit Court of Appeals upheld a class action waiver in the important Murphy Oil … Continue Reading

President Trump—How Will He Change the Courts and What Does that Mean for Employers? (3rd in a 3 Part Series)

In this final post in a three-part series on what employers can expect from the new Trump administration, we consider possible Supreme Court nominees and future rulings affecting labor and employment law. Judicial Appointments President Trump’s election injects uncertainty into the Supreme Court’s makeup and future rulings, including employment-related cases. Because the Senate did not … Continue Reading

Shock the Monkey: Police Officer Photo Post on Social Media Costs Him His Job

When is a “joke” so not funny that you lose your job? The Mississippi Court of Appeals gave some direction on that question, affirming the City of Meridian’s termination of a police officer for an inappropriate (arguably racist) Facebook posting. While on duty (but on a break), Officer Meador posted to his public Facebook page a … Continue Reading

What Employers Can Expect from the New Administration – Part 1: Executive Orders & Administrative Actions

What will a Trump administration do to the labor and employment law landscape? While we can’t predict for certain, we figure we can at least provide better insight than the pollsters who have spent the last year following the campaigns—so here is the first in a three-part blog series. First, here are some Executive Orders … Continue Reading

Browning-Ferris Appeals the NLRB’s Revised Joint-Employer Test

In August of this year, the National Labor Relations Board (NLRB) revised its joint-employer test, which has incited much debate from employers across the country. The newly developed test permits a worker to be considered an employee of both a temp agency and the company where the worker is placed, despite the fact that the … Continue Reading

Employers Hold Up on the Hand Out Policies: 11th Circuit Classifies Company Non-Solicitation Policy as Overbroad

You know that short non-solicitation policy in your handbook that says don’t handout stuff at work that doesn’t have to do with work that you think is clearly legal? Think again. A recent Eleventh Circuit decision agreed with a National Labor Relations Board (NLRB) opinion that found a one line non-solicitation policy to violate employees’ … Continue Reading

Bring in the TV Cameras: NLRB and D.C. Circuit Find Employees Airing Grievance in Media is Protected Activity

An employee goes on television and maligns his bosses for a new company policy with half-truths—and his bosses fire him for disloyalty. Sounds justified, right? Wrong. A National Labor Relations Board (NLRB) decision (recently affirmed by a D.C. Circuit panel) said as long as the employee’s statements to the media are not “flagrantly disloyal” or … Continue Reading

West Coast—Time to Check Your Employment Agreements: Ninth Circuit Negates No-Class Action Clause in Arbitration Agreements

This week, the Ninth Circuit held that Ernst & Young’s (E&Y) arbitration agreement that prohibited its employees from filing class actions violates the National Labor Relations Act (NLRA). E&Y required as a condition of employment that its employees sign an agreement stating that they could not bring any class action or concerted claim regarding wages, … Continue Reading

The Labor Board Wants Those “Temp” Workers to be “Your” Workers So That You Can Become a Union Company

As I was explaining to a client last week that just “sending her back to the temp agency” likely would not be a simple end to a complicated sexual harassment problem, the National Labor Relations Board issued yet another decision impacting joint-employer issues. The Board’s new opinion in Miller & Anderson, Inc., through the joint-employer … Continue Reading

Bring on the Chain Mail: NLRB Strikes Down Another Facially Neutral Email Use Policy

A National Labor Relations Board (NLRB) judge has struck down Caesar’s Entertainment Corporation’s policy that prohibited employees’ using the company email system to distribute “nonbusiness” information. Why, you ask? According to the judge, the policy infringes on employees’ rights to form a union. Why does this matter to you if you don’t have a union? … Continue Reading

Fifth Circuit Upholds Arbitrations with Class Waivers – Gasses NLRB in Murphy Oil Case

More frequently, employers are turning to arbitration agreements to keep lawsuits out of court and prevent the threat of run-away juries. Many arbitration agreements also contain class action waivers which require employees to bring any claims individually and not as a multi-party or class action. Federal courts have routinely upheld arbitration agreements with class waivers; … Continue Reading

All Together Now: NLRB Expands the Joint-Employer Standard

The National Labor Relations Board (NLRB) issued a decision yesterday in a long-litigated case that further defined how two entities could be considered joint employers under the National Labor Relations Act (NLRA). The decision overturned the Regional Director’s finding that workers provided by a staffing agency to a recycling plant were not considered employees of “joint … Continue Reading

NLRB Punts on Whether Northwestern University Football Players Be Allowed to Unionize

On Monday, the full National Labor Relations Board unanimously dismissed a petition by college football players at Northwestern who sought permission to unionize. This decision effectively overturned the regional director’s ruling last year that college players on scholarship should be classified as employees based on the control exercised over them by the athletic department of the … Continue Reading

Tennessee Takes Shot at NLRB in New Law Limiting Franchisor Liability

Franchisors in Tennessee can breathe a small sigh of relief thanks to a newly enacted state statute that seeks to limit their potential liability and strike back at the general counsel of the National Labor Relations Board. Last year, the NLRB’s general counsel filed complaints against McDonald’s franchisees and McDonald’s franchisor, arguing that the two … Continue Reading

The NLRB Expands Employee Protections Yet Again: Will There Be Anything Left Not Considered Protected Concerted Activity?

Continuing a trend we’ve reported on in previous blog posts, the National Labor Relations Board (NLRB) recently handed down yet another decision expanding the protections afforded to employees under the National Labor Relations Act (NLRA). In Sabo, Inc., 362 NLRB No. 81, the NLRB held that Sabo, a vending-machine servicing company, illegally terminated a vending … Continue Reading

President Obama Vetoes Congressional Resolution Aimed at Blocking the NLRB’s “Quickie Election” Rule

On March 31, 2015, President Obama used the fourth veto of his presidency to prevent passage of S.J. Res. 8, a congressional resolution aimed at blocking implementation of the NLRB’s “Quickie Election” Rule. The NLRB Rule, which will benefit organized labor by speeding up the union election process, is set to go into effect on … Continue Reading

If You Can’t Say Anything Nice….NLRB General Counsel Releases New Report on Employee Handbook Rules

The National Labor Relations Board (NLRB) General Counsel released a report on recent case developments on March 18 involving employee handbook conduct restrictions. The stated purpose was to focus on rules that may have a chilling effect on protected concerted activity. Section 7 of the National Labor Relations Act defines concerted activity as when two or … Continue Reading

Union Avoidance in The Face of the NLRB’s New “Quickie Election” Rule

This past December, the National Labor Relations Board (NLRB) issued its Final Rule implementing an accelerated process for conducting union representation elections—the “Quickie Election” Rule. The new regulations are to go into effect on April 14, 2015. Various trade groups, including the U.S. Chamber of Commerce, have already filed legal challenges seeking to invalidate the … Continue Reading

DC Circuit Puts On its Thinking Cap when Addressing NLRB Ruling on Hat Restrictions

The United States Court of Appeals for the District of Columbia Circuit recently struck a blow for employer’s rights to regulate headgear, specifically baseball caps. In World Color (USA) Corp. v. NLRB, the DC Circuit reviewed the NLRB’s order that World Color’s restrictions on employees wearing certain types of baseball caps at work was “overbroad” … Continue Reading

It’s All in the Family: Shifting Standards for Joint-Employer Liability

The concept of joint-employer liability is popping up in the news a lot again. This is because the NLRB is taking a more aggressive view on joint-employer standards under the National Labor Relations Act, particularly as to how these standards apply in the franchisor-franchisee setting. In December, the NLRB filed complaints in 13 different regions … Continue Reading
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