The National Labor Relations Board (the “Board”) under the current administration continues to issue employer friendly rulings in the context of evaluating whether employer work rules violate the National Labor Relations Act (the “Act”).   In LA Specialty Produce Company, 368 NLRB No. 93 (October 10, 2019) (“LA Produce”), the Board’s first ruling applying the standard in The Boeing Co., 365 NLRB No. 154 (2017) for determining the validity of rules, policies and handbook provisions under the Act, the Board’s three-member majority opined that the employer’s rules limiting workers’ comments to reporters and blocking them from sharing certain information about clients are legal despite a union’s claims that the rules encroach on workers’ rights under the Act. The decision offers the first glimpse at how the Board’s Republican leadership will balance workers’ rights and their employers’ interests. The Board’s approach in LA Produce is likely to please businesses and their advocates, as it gives greater weight to the business reality and the business justification for an employer’s work rules, policies, and handbook provisions.
Continue Reading Boeing Test Takes Off as NLRB Holds Employer’s Confidentiality and Media Contact Rules Lawful

In Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019), a number of paid staff of the nonprofit advocacy group joined a petition circulated by Amnesty’s unpaid interns, seeking compensation of their volunteer work.  In response to the petition, the director of the organization made statements that she was “disappointed” that the signers of the petitioners had not availed themselves of the organization’s open door policy to discuss the matter with her and the executive team before signing the petition, and that she did not think the petition was “appropriate” as it was “litigious” and “adversarial.”

Continue Reading The NLRB Rules that Unpaid Interns Are Not Employees Under the Act

California Labor Code §2802 requires employers to reimburse employees for all “necessary expenditures” incurred by an employee in the discharge of his or her duties. Business travel expenses fall into this category, as do uniforms, and even the portion of personal cell phone costs that can be attributed to business use. Thus, theme-based businesses that clothe employees in specialized uniforms or costumes (like the sailor outfits in Season 3 of Stranger Things) must provide those specialized outfits or reimburse employees for the expenses incurred in buying and maintaining them.

Continue Reading Safety Footwear: Reimbursement Obligation for Restaurants in California?

The body of law surrounding class action employment arbitrations received another jolt Monday when the Second Circuit revived an arbitration action with a potential class of roughly 70,000 employees.

In Jock v. Sterling Jewelers, the Second Circuit overturned the district court and upheld an arbitrator’s decision to bind absent class members to the arbitration provisions of the company’s agreement.  The case represents another significant development in the realm of class arbitrations and class waivers, which have been the subject of significant recent litigation.

Continue Reading Second Circuit Revival of 70,000-Employee Class Action Adds Ripple to Uncertain Waters of Class Arbitrations

As we have previously reported here and here, courts and the National Labor Relations Board (“NLRB”) have released a number of recent decisions favoring the enforceability of arbitration agreements in the employment context.

It is now settled law that class-action waivers in arbitration agreements do not violate the National Labor Relations Act (“the Act”) or infringe on employees’ Section 7 rights under the Act.  In a recent decision, the NLRB extended this holding to allow employers to implement arbitration programs—including those with class-action waivers—in direct response to litigation by its employees.

Continue Reading NLRB Allows Employers To Implement Mandatory Arbitration Programs In Direct Response To Being Sued

Imagine a future in which Artificial Intelligence (“AI”) does the recruiting and hiring at U.S. companies.  Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament, and work habits are a flawless match for the job.  Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases, and flawed intuition to hiring and employment decisions.  While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off.  AI software such as Mya, HireVue, and Gecko are among the numerous platforms that employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice, and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability, and interpersonal skills.

Continue Reading Illinois Enacts AI Interview Law Amid an International Trend Toward Regulation

As originally reported on the Hunton Retail Law Resource Blog, the US Chamber of Commerce, along with two other business-oriented groups, filed an amicus brief urging the Ninth Circuit to overrule a $102 million judgment against Wal-Mart.

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As discussed on the Hunton Retail Law Resource blog on November 5, 2019, for the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA).  Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.

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Last week, a federal judge in the Eastern District of Michigan granted Domino’s Pizza, Inc.’s motion to dismiss, holding that workers operating under the Domino’s brand must arbitrate their claims that the pizza chain made its franchises promise not to hire each other’s employees, then misled the public to believe no such agreement existed.

Continue Reading Domino’s Franchise Workers Compelled to Arbitration Through Franchisee Agreements