Archives: NLRB

Not Your Godfather’s Smackdown: Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

By Todd Lebowitz on August 1, 2022 Posted in NLRB

In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released. It’s a two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub. On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor … Continue Reading

FTC and DOJ MOUs with NLRB Reflect the Administration’s Ongoing Focus on Restrictive Labor Relationships and the Gig Economy

By Daniel Kaufman, Marc Antonetti and Ann O'Brien on July 27, 2022 Posted in NLRB

Last week, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) announced that the agencies had entered into a new Memorandum of Understanding (MOU). The FTC press release touted the MOU as a big deal, stating that it would “bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets … Continue Reading

Caution Signs Ahead: New NLRB General Counsel Memo Offers a Surprising (and Alarming) Road Map of Plans and Priorities

By Todd Dawson on August 23, 2021 Posted in NLRB

New National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo appears ready and willing to help deliver on President Joe Biden’s promise to be “the most pro-union president [we’ve] ever seen.” Abruzzo issued a recent memorandum listing various types of cases on which the NLRB’s regional directors will be required to seek guidance during her … Continue Reading

A Brave, New World? Recent NLRB Rulings Concerning Mail Ballot Elections May Be The Beginning Of A New Era In Board Elections

By Todd Dawson and Carlos Torrejon on August 16, 2021 Posted in NLRB

Since the onset of the COVID-19 pandemic in March 2020, unions and employers alike have had to adjust to a “new normal” of mail ballot NLRB elections. Under normal circumstances, the NLRB’s preferred and standard method for conducting elections is in person, usually at the employer’s facility and – depending on the size of the … Continue Reading

D.C. Circuit Says NLRB Must Explain Its Decision-Making

By Michael Parente and Peter Fischer on February 12, 2021 Posted in NLRB

Court Remands NLRB Decision for Failing to Distinguish Contrary Precedent A shift in the political party at the White House generally means a corresponding shift in philosophy for the National Labor Relations Board (NLRB). Naturally then, the question many employers are asking is not “Will the NLRB swing to a pro-labor position?” but “How far … Continue Reading

NLRB: Being Abusive Is Not Protected Union Activity

By Michael Chamberlin and Joseph S. Persoff on July 27, 2020 Posted in NLRB, Unions

Under the National Labor Relations Act (NLRA), a union member cannot be disciplined for forming or joining unions, bargaining collectively, or engaging in other activities for the purpose of collective bargaining, such as striking. But this protection does not immunize a union member from discipline for any type of inappropriate conduct while engaging in protected … Continue Reading

A Shift Toward Employers?

By Elliot Azoff and Amanda Van Hoose Garofalo on March 9, 2017 Posted in NLRB

As most employers are now aware, the National Labor Relations Board (NLRB, or the “Board”) in recent years has adopted more restrictive, non-employer-friendly approaches to what it will permit in workplace policies. These rules have been applied to union employers and just as vigorously to unorganized employers. Management labor lawyers have been placing their clients … Continue Reading

Joint Employment Update: What’s The Status of Browning-Ferris and the NLRB?

By Todd Lebowitz on January 30, 2017 Posted in NLRB

In August 2015, the NLRB rewrote the book on joint employment, declaring in the Browning-Ferris case that the right to exercise minimal control, even if not actually exercised, was enough to create a joint employment relationship. (Read more here.) Previously, joint employment under the National Labor Relations Act (NLRA) required the actual exercise of a meaningful … Continue Reading

NLRB Makes Up More New Rules on Joint Employment

By Todd Lebowitz on July 17, 2016 Posted in NLRB

Remember that kid in elementary school who, whenever you were winning at some made-up playground game, would change the rules in the middle? “Kids can be so unfair,” your parent might have said, trying to console you. “But when you get older, there are laws and rules, and they’re written down. Everyone knows what the rules … Continue Reading

NLRB “Quickie Election Rule” Upheld by Fifth Circuit

By M.C. Miller on June 15, 2016 Posted in NLRB

On June 11, 2016, the United States Court of Appeals for the Fifth Circuit upheld the National Labor Relations Board’s (the “NLRB’s” or the “Board’s”) regulations enacted last year, radically altering the traditional rules governing union elections. As we have discussed previously, the new regulations, which took effect on April 14, 2015, and are referred … Continue Reading

NLRB Blows Up Staffing Agency Model: Rewrites Joint-Employer Test

By Todd Lebowitz on August 30, 2015 Posted in NLRB, Staffing Agency

Boom! In a 3-2 decision, the National Labor Relations Board spontaneously redefined joint employment in a way that threatens to turn almost every company that works with a staffing agency into a joint employer for collective bargaining purposes. Throwing a gigantic bone to unions, the NLRB overturned 30 years of its own precedent to create … Continue Reading

Think Your Handbook Is Legally Compliant? NLRB Says, “Think Again”

By Ana Salper and Adam Seldon on April 8, 2015 Posted in NLRB

In the most recent memorandum issued by the General Counsel (“GC”) of the National Labor Relations Board (“Board”) regarding workplace policies, memorandum GC 15-04, the Board offers employers new guidance on how to craft employee handbook rules that do not run afoul of the National Labor Relations Act (“Act”). The two-part memorandum first analyzes employer … Continue Reading

How NLRB’s New ‘Quickie Election’ Rule Strengthens Unions’ Positions

By Erica Berencsi on December 21, 2014 Posted in NLRB

On December 12, 2014, by a 3-2 party-line decision, the National Labor Relations Board (“NLRB” or the “Board”) issued a final rule, which if implemented will drastically truncate union election procedures. Such changes are intended to shorten the election period from the current median time of 38 days from petition to election to between 14 … Continue Reading

National Labor Relations Board Permits Employees to Use Workplace Email Systems for Union Activity

By Bryan O’Keefe on December 15, 2014 Posted in NLRB, Uncategorized

In a landmark 3-2 decision, the National Labor Relations Board (“NLRB” or “Board”) reversed its own precedent and found that employees now have a presumptive right to use their employer’s email system to engage in communications relating to concerted activity protected by Section 7 of the National Labor Relations Act—including union organizing—during nonworking time. Purple … Continue Reading

‘Going Postal’ Over Data Breach Response: Union Files Failure-to-Bargain Charge With NLRB Against USPS

By Pat Muldowney on November 24, 2014 Posted in NLRB, Unions

As recent high-profile cyberattacks have demonstrated, employers have a duty to protect their employees’ electronically stored personal information from being accessed by hackers, and to promptly remedy any breach in security concerning such information. Depending upon the outcome of a recently filed charge before the National Labor Relations Board (“NLRB” or the “Board”), unionized employers … Continue Reading

ALERT! Raising the Stakes: NLRB Expands Remedies for Labor Law Violations

By Jeremy Hart and Kathryn Rosenbaum on October 31, 2014 Posted in NLRB

On October 24, 2014, the National Labor Relations Board (NLRB, or Board) asserted that it had broad authority to order expanded remedial measures in response to acts the Board deemed to constitute “egregious and pervasive” violations of the National Labor Relations Act (NLRA, or Act). These unprecedented remedies demonstrate that the NLRB intends not only … Continue Reading

NLRB Adopts New Test for Independent Contractor Misclassification, Applies it to Find FedEx Drivers are Employees Who Can Unionize

By Todd Lebowitz on October 10, 2014 Posted in Independent Contractor, NLRB

The NLRB has tossed a new vegetable into the enormous salad of independent contractor misclassification tests. As companies might expect, the new vegetable smells rotten. Companies who wish to analyze whether their non-employee workers are properly classified as independent contractors must now contend with a new NLRB test, in addition to the IRS Right to … Continue Reading

When Acting to Prevent Data Breaches and Comply with Privacy Laws, Remember Overarching Employee Rights

By Scott McIntyre and Erika Spears on September 4, 2014 Posted in NLRB

The grocery business may be “fresh and easy,” but drafting a confidentiality and data protection policy that withstands the scrutiny of the current National Labor Relations Board (NLRB) is not. The NLRB, in its recent 2-1 Fresh & Easy Neighborhood Market and United Food and Commercial Workers International Union decision, 361 NLRB No. 8 (July … Continue Reading

NLRB to McDonald’s: Not Lovin’ It

By Ellen Shadur Gross on July 31, 2014 Posted in Hospitality Industry, NLRB, Restaurants, Retail

In a breathtaking announcement issued on July 29, 2014, the Office of the General Counsel of the National Labor Relations Board has authorized the issuance of complaints against McDonald’s USC, LLC in at least 43 unfair labor practice charge proceedings where the legal employer is not McDonald’s but a McDonald’s franchisee. The pending unfair labor … Continue Reading