A National Labor Relations Board Administrative Law Judge dismissed the General Counsel’s allegation that the employer violated the National Labor Relations Act by not giving the union representing its employee notice and opportunity to bargain over the discharge of an employee it represented. In doing so, the Administrative Law Judge teed up the issue for the Board to change the law on appeal.
Continue Reading Get Your Bargaining Shoes On
On May 1, 2023, the National Labor Relations Board issued its decision in Lion Elastomers, 372 NLRB No. 83 (2023), which will make it more challenging for employers to discipline workers who engage in abusive workplace conduct in connection with Section 7 activity under Board law. The decision overrules General Motors, 369 NLRB No. 127 (2020), which logically and uniformly applied the Board’s traditional Wright Line burden-shifting framework to cases involving employee outbursts. The Board’s decision reinstates a triad of “setting-specific” tests previously used to determine whether an employee’s opprobrious conduct forfeited the Act’s protection.
Continue Reading NLRB Restores Leniency for Employee Abusive Conduct and Workplace Outbursts
The National Labor Relations Board (“Board” or NLRB) recently decided in Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) to impose extraordinary remedies upon an employer who violated a court order imposing certain collective bargaining obligations and committed multiple violations of the NLRA throughout the collective bargaining process. The extraordinary remedies included: the posting and distribution of a notice explaining employee rights under the NLRA (in addition to the standard notice that states the NLRB found NLRA violations, the violator will not commit those violations in the future, and the remedies); the reading of the notices in the presence of employees by the employer’s chief executive officer, or, if the employer prefers, by a Board agent in the presence of the CEO; and site visits by an NLRB agent to determine compliance for one year.
Continue Reading NLRB Discusses Extraordinary Remedies Available for Egregious or Habitual Violations
An Administrative Law Judge (ALJ) of the National Labor Relations Board (Board) recently issued a decision which hints that changes might be on the horizon for how the National Labor Relations Act (Act) is applied towards educational institutions with religious affiliations. Saint Leo University Inc., 2023 WL 2212789 (2023).
Continue Reading NLRB Seeks To Expand Jurisdiction Over Educational Institutions with Religious Affiliations
As employers know, the federal government’s New Year’s resolutions often do not make employers’ lives easier. The following are recent developments of which employers should be aware.
Continue Reading New Year – New Hurdles
The Court of Appeals for the D.C. Circuit has recently revived a portion of an election rule promulgated by the NLRB during the Trump administration. In 2019, the NLRB promulgated an election rule which modified several “quickie” election procedures established by the NLRB during the Obama administration in 2014. The 2014 Rule sped up the union election timeframe, and the 2019 Rule aimed to address criticisms that the timeframe was too short a time in which to meet the various new obligations triggered by the filing of a union representation petition while also adequately preparing for the representation hearing. The AFL-CIO sued in 2020 to block the 2019 Rule.
Continue Reading U.S. Appeals Court Partially Revives Trump-Era Union Election Rule
On January 5, 2023, the Federal Trade Commission (“FTC”) issued a notice of proposed rulemaking (“NPRM”) that would “provide that it is an unfair method of competition – and therefore a violation of Section 5 [of the FTC Act] – for an employer to enter into or attempt to enter into a non-compete clause with a worker; [or to] maintain with a worker a non-compete clause . . .” If this rule becomes final, it would effectively prohibit employers from entering into non-compete agreements—as broadly defined by the proposed rule—with their workers.
Continue Reading The Federal Trade Commission Seeks to Ban Non-Compete Clauses
On December 7, 2022, President Joe Biden signed the Speak Out Act (the “Act”), which limits the enforceability of pre-dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes. The bipartisan Act was previously passed by the Senate and the House of Representatives by an overwhelming majority.
Continue Reading Speak Out Act Restricts Use of Non-Disclosure and Non-Disparagement Provisions
Yesterday, the National Labor Relations Board (“Board” or “NLRB”) in American Steel Construction, Inc., 372 NLRB No. 23 (2022) decided that employers must meet a heightened burden to expand a voting unit sought by a union in a union election. The decision is a significant development because it makes it easier for unions to organize workforces. And it marks yet another reversal of precedent by the Board to the benefit of unions. (We’ve discussed prior reversals here and here.)
Voters in the District of Columbia, Nebraska, and Nevada overwhelmingly approved minimum wage-related ballot initiatives during this year’s midterm elections. The political movement to establish a $15.00 minimum wage started in 2012 when 200 New York City fast food workers walked off the job demanding better pay and union rights. Despite inaction by the federal government in the subsequent decade, there continues to be bipartisan support for minimum wage increases, particularly at the state level, as illustrated by the success of these three ballot measures.
Continue Reading D.C., Nebraska, and Nevada Voters Approve Minimum Wage Increases