Tag Archives: NLRA

OFCCP Proposes Prohibition Against Pay Secrecy Policies

Federal contractors and subcontractors may soon be prohibited by the OFCCP from having polices that prohibit employees from talking about their pay and from discriminating against those who do. On September 17, the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) published a notice of proposed rule-making (NPRM) concerning pay secrecy policies.… Continue Reading

Pay Equity Under The Obama Administration: What Do The Latest Executive Actions Mean For Your Company?

You're Invited: Pay Equity Under The Obama Administration. Pay equity for women and minorities has been a priority throughout President Obama's administration. President Obama has wielded his Executive power with increasing frequency in 2014. President Obama recently issued an Executive Order and a Presidential Memorandum that target the pay practices of federal contractors. Both actions are designed to increase transparency in employee compensation. They may have significant consequences for covered employers.… Continue Reading

Fifth Circuit Delivers Some Bad News For Employer Confidentiality Policies

We have been reporting in this space for the better part of a year about the uptick in NLRB enforcement activity in non-union workplaces. One of the Board's most noteworthy - and controversial - areas of focus has been on the question whether employer confidentiality rules unlawfully chill protected concerted employee activity under the National Labor Relations Act.… Continue Reading

Federal Court: Non-Public Facebook Wall Posts Are Protected Under The Federal Stored Communications Act

The U.S. District Court for the District of New Jersey recently ruled that non-public Facebook wall posts are protected under the Federal Stored Communications Act (the “SCA”) in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-CV-3305 (WMJ) (D.N.J. Aug. 20, 2013).  The plaintiff was a registered nurse and paramedic at Monmouth-Ocean Hospital Service Corp. (“MONOC”).  … Continue Reading

Key United States Supreme Court Decisions Affecting Labor and Employment for the 2012-2013 Term

EMPLOYMENT DECISIONS Vance v. Ball State University: Narrow Definition of Supervisor in Harassment Suits In Vance, the Supreme Court announced a narrow standard for determining which employees constitute “supervisors” for purposes of establishing vicarious liability under Title VII. In a 5-4 decision, the Court decided that a supervisor is a person authorized to take “tangible … Continue Reading

Supreme Court Delivers Another Arbitration Victory For Employers But Challenges Remain

Last week, in American Express Co. v. Italian Colors Restaurant, the United States Supreme Court, in a 5-3 ruling, reversed the Second Circuit and held that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery.  … Continue Reading

NLRB Releases Guidance On Workplace Investigation Confidentiality Policies

Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s Office of the General Counsel recently released a memorandum providing additional guidance on the confidentiality of internal workplace investigations.  Banner Health held that to require confidentiality of investigations, an employer … Continue Reading

NLRB Reverses 50-Year-Old Precedent; Strips Employers of Longstanding Economic Leverage During Contract Negotiations

In numerous prior posts, we have reported about the pro-labor decisions and regulatory changes by the Democratic-majority National Labor Relation Board.  Unfortunately, the Board is at it again, this time in WKYC-TV, Inc., 359 NLRB No. 30 (2012) , reversing a fifty-year-old precedent regarding the effect of contract expiration on a dues checkoff clause contained … Continue Reading

NLRB Finds At-Will Clauses In Two Employee Handbooks Are Lawful

The National Labor Relations Board’s (“NLRB”) General Counsel recently released an analysis of contested at-will employment clauses in two employment handbooks and ultimately concluded that neither violated the National Labor Relations Act (“NLRA”). Employees had filed charges with the NLRB alleging that the at-will employment clauses contained in the employee handbooks distributed by Rocha Transportation, … Continue Reading

NLRB Judge Invalidates “Chilling” Social Media Policy Despite Savings Clause

On September 20, 2012, Administrative Law Judge Clifford H. Anderson struck down telecommunications company EchoStar Corp.’s policy prohibiting employees from making disparaging comments about it on social media sites. The NLRB judge found that the prohibition, as well as a ban on employees using social media sites with company resources or on company time, chilled … Continue Reading

NLRB Finds That Requesting Confidentiality In An On-Going Workplace Investigation Violates NLRA

The NLRB has again asserted its willingness to encroach upon employers’ long standing legitimate employment policies in a non-unionized workforce.  In Banner Health System, 358 NLRB No. 93 (July 30, 2012), the Board held that a blanket policy prohibiting an employee from discussing an ongoing investigation violates section 8(a)(1) of the National Labor Relations Act.… Continue Reading

NLRB On A Mission To Curb Anti-Social Media Policies In The Workplace

In recent years, the National Labor Relations Board (NLRB) and unions have placed a growing emphasis on extending the application of labor law into the social media arena.  As part of this initiative, the NLRB has adopted a strong stance against social media policies that it believes pose a threat to employees’ right to engage … Continue Reading

Aiming To Narrow The Definition Of Supervisor Under The NLRA, Senate Democrats Ask For A Little RESPECT

While “employees” have the right to form, join, or assist labor organizations under the National Labor Relations Act (NLRA), supervisors are not employees under the statute and do not have the same rights.  Under current case law, “supervisor” is interpreted broadly and employees who merely assign duties to other employees on a daily basis are … Continue Reading

NLRB New Posting Still Effective April 30, 2012

In several prior blog entries, we told you about the NLRB’s new requirement that employers post a notice regarding employee rights under the NLRA.  Employers have been following the story with interest. Initially proposed by the NLRB in December 2010, the new posting tells employees about their rights under the National Labor Relations Act (“NLRA”).  … Continue Reading

Quickie Union Elections With Less Supervision: Let The Games Begin

In prior postings, we have reported about the potential effects that the National Labor Relations Board’s (“NLRB”) recent pro-labor composition could have on non-union employers and how it will become increasingly easier for unions to organize employees as a result of the NLRB’s recent decisions and procedural changes.  This posting focuses on the convergence of … Continue Reading

New York Case Challenges President Obama’s NLRB Appointments

Several of our recent posts have addressed the sharp criticism directed towards President Obama in response to his recent recess appointments to the NLRB.  A new case filed in the Eastern District of New York may result in one of the first court rulings involving a challenge to the President’s authority to have made the … Continue Reading

NLRB Releases Second Round Of Guidance For Social Media Cases

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent … Continue Reading

NLRB Finds That D.R. Horton Engaged In Unfair Labor Practice By Including Class Action Waiver In Mandatory Arbitration Agreement

Two members of the National Labor Relations Board recently held that employers may not require employees to enter into arbitration agreements, as a condition of employment, that waive the ability to pursue class or collective claims. The Board’s ruling does not sound the death knell for class action waivers, however, as many Plaintiff’s lawyers have … Continue Reading

NLRB Publishes New Ambush Election Rule In Time For Christmas; Faces Court Challenge From Business Groups

On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do … Continue Reading
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