It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.
Continue Reading It’s Time Again for Employers to Ensure Handbook Compliance

On December 21, 2020 the NLRB adopted an ALJ’s determination that a union’s request for information about non-bargaining unit employees was relevant. One of the issues present in the case was whether a union’s request for information about non-bargaining unit employees sought relevant information. The NLRB upheld the ALJ’s determination that the information was relevant solely because the employer should have known the information was relevant based on the circumstances surrounding the request.
Continue Reading Information on Non-Unit Employees May Become Relevant Once Grievance Filed

Last month, the United States District Court for the Southern District of New York invalidated portions of the Department of Labor’s Final Rule on joint employment, holding that parts of the Final Rule conflicted with the statutory language of the FLSA and chiding the DOL for failing to adequately explain why the Final Rule departed from the DOL’s own prior interpretations.
Continue Reading Court Invalidates DOL’s Final Rule On Joint Employment Under The FLSA

In a pending NLRB case, an employees’ rights advocacy group, the National Right to Work Legal Defense Foundation, filed an amicus brief supporting poultry plant workers seeking to decertify their union,  the United Food and Commercial Workers Union, even though there was a collective bargaining agreement in place between the UFCW and their employer.
Continue Reading The Contract Bar Doctrine: Abolition or Reform?

On May 30, 2020, the U.S. District Court for the District of Columbia issued a two page order invalidating five elements of the NLRB’s 2019 election regulation, based on Count One of the plaintiff’s complaint.  On June 7, the court issued its promised memorandum opinion further explaining that order. 
Continue Reading NLRB: Federal Court in DC Issues Promised Opinion on Election Regulations

On Saturday, April 11, 2020, Virginia Governor Ralph Northam officially signed the Virginia Values Act into law.  The bill’s headlining purpose—adding gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act—is commendable and has garnered widespread support.  However, other, more technical changes in the bill that are unrelated to the headlining purpose are poised to change the landscape of employment litigation in Virginia and could lead to a significant increase in discrimination lawsuits filed in Virginia’s state courts.  Virginia employers are well served to begin preparing now for this new procedure in the handling of employment discrimination charges and litigation, as the bill’s new provisions go into effect on July 1st.
Continue Reading Virginia Values Act Could Open Floodgate of New Employment Discrimination Cases For Virginia Employers

Employers with collective bargaining agreements and union relationships know they generally cannot make unilateral changes to terms and conditions of employment.  But in an unprecedented emergency like the coronavirus (COVID-19) outbreak we are all facing, union bargaining obligations may be relaxed, either based on the terms of a collective bargaining agreement, or under National Labor Relations Board law.  As employers are forced to make ever more difficult operational decisions in the face of this emerging threat, here are some issues unionized businesses should consider when contemplating major workplace changes.
Continue Reading Coronavirus and the NLRA – Unilateral Changes in Emergency Situations

Virginia’s 2020 legislative session is not scheduled to wrap-up until March. But Virginia employers need to pay attention now to several game-changing bills moving through the legislative process and expected to be signed into law this spring.  The Hunton government relations team, working with several lobbying clients, has already helped defeat several of these measures including a proposed repeal of Virginia’s right to work statute.  But others are expected to become law, and could dramatically increase the volume of employment litigation in Virginia.  Employers are therefore well advised to begin planning for these changes now.
Continue Reading Attention Virginia Employers: New Legislation You Need to Know About

The last few weeks of a National Labor Relations Board Member’s term can be a busy time.  This is especially true when a Member’s imminent departure will leave the Board without any Members from the minority political party.  The Board historically has avoided major shifts in precedent without the participation of both parties.  Last month was no different.  As the clock wound down on Democrat Lauren McFerran’s term this December, the Board issued a flurry of significant rules and opinions that pare back many of the most anti-employer precedents set during the Obama-era.
Continue Reading A December to Remember at the NLRB