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

On September 10, 2020, the United States District Court for the District of Massachusetts issued a Memorandum and Order granting summary judgment in favor of a franchisor in response to claims by a purported class of franchisees that they were not truly independent contractors, but employees of the franchisor. The main issue addressed in the case was whether specific federal legal requirements that are imposed upon franchisors trump the general Massachusetts independent contractor classification statute.
Continue Reading Massachusetts District Court Rejects Employee Classification for Franchisees

On July 27, 2020 the NLRB issued a supplemental decision involving a labor law successor employer, which unilaterally implemented terms and conditions of employment prior to commencing operations. The question presented was whether and to what extent the successor could take further unilateral action, free of the duty to bargain with the union.
Continue Reading NLRB Clarifies Successor Employer’s Duty to Bargain Over New Employment Terms

In mid-May the NLRB established a clear rule regarding stray marks on ballots in union representation elections, eradicating years of convoluted and inconsistent precedent. The decision, which applied retroactively, resulted in a union’s failure to amass a majority of the votes and, consequently, a reversal of the Regional Director’s Decision and Certification of Representation.
Continue Reading NLRB Provides Clarity and Consistency to Stray Marks on Ballots

Social distancing and uncertainty about COVID-19 have altered many aspects of daily life, uprooted traditions, and redefined “normal.” Unions are seizing this opportunity in a push for electronic representation elections.  On May 6, a coalition of fourteen unions urged Nancy Pelosi, Mitch McConnell, Kevin McCarthy, and Chuck Schumer to fund and direct the NLRB to establish a system and procedures to facilitate electronic union representation elections.
Continue Reading Electronic Union Representation Elections Are Looming

We previously wrote about the San Diego County face-covering mandate. On April 7, 2020, the City of Los Angeles joined San Diego County and issued an Order that requires certain workers to wear cloth face coverings. Notably, the Order is more expansive than San Diego County’s face-covering mandate because it covers workers in more occupations, applies to customers and visitors of certain businesses, provides face-covering maintenance requirements, and requires certain employers to furnish face coverings and other sanitary products.
Continue Reading The City of Los Angeles Orders Face Coverings for Certain Workers and Customers, and Requires Certain Employers to Provide Them

The California Public Health Department issued Guidance recommending that all Californians wear cloth face coverings when in public for essential activities.  San Diego County took that guidance one step further, however, and issued an addendum to its public health order, requiring that certain employees wear cloth face coverings.  The San Diego order also requires covered businesses to follow new posting guidelines, and recommends that all San Diegans heed California’s Statewide Face Coverings Guidance.
Continue Reading California Recommends Face Coverings, While San Diego County Requires Them For Certain Workers And Issues New Posting Requirements

COVID-19 presents an array of new challenges and an abundance of uncertainty for employers. Notable among them, is the possibility that communities and states will begin to issue mandatory business closures and shelter in place orders. Interpreting and complying with these orders raises a host of issues for employers to consider.

Continue Reading Considerations for Employers Anticipating Mandatory Closure and Shelter in Place Orders