Earlier this year, the Office of the General Counsel (GC) of the  National Labor Relations Board (Board) issued an Advice Memorandum in Case 05-CA-281089 instructing Board Region 5  to issue a complaint alleging  that the employer, LT Transportation (a shuttle bus transportation provider), violated Section 8(a)(1) of the National Labor Relations Act, when it banned nonemployee union organizers from boarding its shuttles because of their identity as union organizers.
Continue Reading NLRB GC Advocates for Limiting Employer’s Private Property Rights

On April 11, 2022, the National Labor Relations Board’s General Counsel urged the Board to revive the long-abandoned Joy Silk doctrine, which has not been in effect in nearly 50 fifty years. 
Continue Reading NLRB General Counsel Urges The NLRB To Revive The Joy Silk Doctrine For Union Elections

The National Labor Relations Board (“NLRB” or “Board”) recently indicated an openness to revisiting the independent contractor standard employed by the Board when assessing whether individuals are covered under the National Labor Relations Act (“Act”).
Continue Reading NLRB Is Looking to Review (Again) Independent Contractors And Who is Covered

Lost in the weeds of recent COVID-19 news is the increasing number of states and localities that have legalized medicinal and recreational use of marijuana.  Such legalization brings with it varying degrees of worker protections and employer obligations.  Philadelphia, PA and the state of Montana are two of the latest jurisdictions to add their names to the sprouting list of jurisdictions that protect not only medical use, but also recreational use of marijuana.  These protections will undoubtedly usher in a new wave of test cases and compliance questions, particularly as many workplaces shift to remote models.
Continue Reading Philadelphia and Montana Join List of Jurisdictions That Provide Protections for Recreational Marijuana Use

On November 10, 2021, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memorandum outlining employers’ bargaining obligations with respect to compliance with OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).
Continue Reading NLRB General Counsel Issues Memo Regarding Bargaining Obligations for Vaccine Mandate

On September 7, 2021, the Equal Employment Opportunity Commission (“EEOC”) filed a first-of-its-kind lawsuit against an employer that allegedly denied accommodation for telework in violation of the Americans with Disabilities Act (the “ADA”). Currently, the case is the only lawsuit the EEOC has filed concerning a request for an ADA accommodation related to COVID-19. The suit is a challenge to the typical posture of courts that frequently consider working from home to be an unreasonable accommodation.
Continue Reading EEOC Files First COVID-19 ADA Accommodation Suit

Last month, a judge out of the Alameda County Superior Court ruled California’s Proposition 22 unconstitutional, constituting a significant legal obstacle to this young statute.

Proposition 22 (formally the Protect App-Based Drivers and Services Act, Bus. & Prof. Code, §§ 7448, et seq.) was a ballot initiative passed by a majority of California voters in the November 2020 election, which primarily aimed to classify application-based transportation and delivery companies’ drivers as independent contractors rather than employees. Proposition 22 arose in response to Assembly Bill 5, 2019 legislation codifying the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court, which created a new “ABC” test for determining whether workers are properly classified as independent contractors.
Continue Reading Alameda Superior Court Judge Rules Proposition 22 Unconstitutional

This year has seen an increase in state legislation addressing noncompetition agreements (“non-competes”). Following Washington, D.C.’s passage of a ban on non-competes in January 2021, Oregon, Nevada, and Illinois undertook revisions to their respective non-compete statutes.
Continue Reading 2021 Mid-Year State Non-Compete Legislative Update

In recent years, there has been a growing trend amongst litigants of protecting documents filed as part of the judicial record from public view by sealing them by agreement under a protective order.  However, a recent opinion out of the U.S. Court of Appeals for the Fifth Circuit criticizes this now-common practice. 
Continue Reading The Fifth Circuit Criticizes the Practice of Sealing Documents by Agreement

With the ushering in of a new administration, several changes have quickly taken place at the National Labor Relations Board. Within hours of taking office, the Biden administration removed Trump appointee NLRB General Counsel Peter Robb and replaced him with interim General Counsel Peter Ohr.
Continue Reading Changes Afoot at the NLRB Under the New Administration