Tag Archives: NLRA

Supreme Court Will Rule On Legality of Class Action Waivers in Employer Arbitration Agreements

The United States Supreme Court has granted consolidated review of three cases to determine whether arbitration agreements that waive employees’ rights to participate in a class action lawsuit against their employer are unlawful. The Court’s decision to address the uncertainty surrounding class action waivers of employment claims follows a circuit split last year in which the Fifth and Eighth circuits upheld such waivers and the Seventh and Ninth circuits found that such waivers violate the National Labor Relations Act. Given the increasingly widespread use of class action waivers by employers to stem costly class and collective actions, the high court’s ruling is likely to have a significant nationwide impact.… Continue Reading

Labor & Employment Quick Takes: What Non-Unionized Financial Services Companies Should Know about the NLRA

A common misconception among banks and financial services companies is that if they are non-unionized, the National Labor Relations Act does not apply to them. Hunton & Williams LLP partner Emily Burkhardt Vicente and senior attorney Amber Rogers discuss the key points non-unionized financial services companies should know about the NLRA.… Continue Reading

Seventh Circuit Bucks the Trend and Creates a Circuit Split Regarding Enforceability of Employment Class Action Waivers

With its May 26 Lewis v. Epic-Systems Corp. decision, the Seventh Circuit became the first circuit to back the reasoning in D.R. Horton, Inc., 357 NLRB No. 184 (2012), and held that a mandatory arbitration agreement prohibiting employees from bringing class or collective actions against their employer violates the National Labor Relations Act (NLRA). This decision creates a circuit split regarding the enforceability of arbitration agreements with class action waivers in the employment context, and the issue is now ripe for potential Supreme Court review.… Continue Reading

Viewpoint: The Importance of Dissent at the NLRB

Sitting as the lone dissenter on the National Labor Relations Board (NLRB) might seem like a futile exercise. Grinding away on opinions that are critiques of the law as stated by your colleagues can be disenchanting work. But as a former NLRB member, I can attest that dissents are also valuable tools for future board members and the courts. Indeed, one of my proudest moments as a lawyer came when a court of appeals reversed the board “for the reasons stated by Member Meisburg.”… Continue Reading

D.C. Circuit Refuses to Rubber Stamp NLRB Finding

In Dover Energy, Inc., Blackmer Division v. National Labor Relations Board, the Board held that Blackmer violated section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it threatened Tom Kaanta, a Blackmer employee and United Auto Workers Union shop steward, with disciplinary action if he continued to make “frivolous” information requests to the company’s lead negotiator during collective bargaining agreement (“CBA”) negotiations. On March 23, 2016, the U.S. Court of Appeals for the D. C. Circuit reversed and held that the NLRB’s factual findings were not supported by substantial evidence.… Continue Reading

DOL Says Joint Employment Under FLSA and MSPA Should Be “As Broad As Possible”

On January 20, 2016, the administrator of the Department of Labor’s Wage and Hour Division (WHD), David Weil, issued an “Administrator’s Interpretation” (AI) regarding the agency’s interpretation of joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). … Continue Reading

NLRB Continues To Stand Firm On Its Position That Class Action Waivers Are Unenforceable

In the second half of December 2015, the National Labor Relations Board (“NLRB”) issued 16 rulings on the illegality of mandatory arbitration agreements containing class and collective action waivers, even in situations where the agreements allow employees to opt out of, or into, the waiver. The NLRB continues to hold firm that these types of waivers violate the National Labor Relations Act (“NLRA”) because they infringe upon the employees’ protected right to engage in concerted activity—despite the U.S. Supreme Court’s continued favoring of class action waivers.… Continue Reading

Narrowing the Definition of a “Supervisor” under the National Labor Relations Act

In 2015 the National Labor Relations Board (the “Board”) issued two opinions, Cook Inlet Tug & Barge, Inc. and Buchanan Marine, L.P., each finding that tugboat captains did not qualify as “supervisors” for the purposes of the National Labor Relations Act (the “Act”). These decisions demonstrate a trend in recent Board decisions narrowing the definition of a supervisor.… Continue Reading

NLRB Strikes Again With Joint-Employer Test

As we have reported in this space, the National Labor Relations Board (“Board”) made waves several weeks ago with its highly controversial new test for determining if an entity is a “joint employer” of another entity’s employees. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). The Board has wasted no time in seeking to extend its new test to the health care industry. … Continue Reading

OFCCP Proposes Prohibition Against Pay Secrecy Policies

Federal contractors and subcontractors may soon be prohibited by the OFCCP from having polices that prohibit employees from talking about their pay and from discriminating against those who do. On September 17, the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) published a notice of proposed rule-making (NPRM) concerning pay secrecy policies.… Continue Reading

Pay Equity Under The Obama Administration: What Do The Latest Executive Actions Mean For Your Company?

You're Invited: Pay Equity Under The Obama Administration. Pay equity for women and minorities has been a priority throughout President Obama's administration. President Obama has wielded his Executive power with increasing frequency in 2014. President Obama recently issued an Executive Order and a Presidential Memorandum that target the pay practices of federal contractors. Both actions are designed to increase transparency in employee compensation. They may have significant consequences for covered employers.… Continue Reading

Fifth Circuit Delivers Some Bad News For Employer Confidentiality Policies

We have been reporting in this space for the better part of a year about the uptick in NLRB enforcement activity in non-union workplaces. One of the Board's most noteworthy - and controversial - areas of focus has been on the question whether employer confidentiality rules unlawfully chill protected concerted employee activity under the National Labor Relations Act.… Continue Reading

Federal Court: Non-Public Facebook Wall Posts Are Protected Under The Federal Stored Communications Act

The U.S. District Court for the District of New Jersey recently ruled that non-public Facebook wall posts are protected under the Federal Stored Communications Act (the “SCA”) in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-CV-3305 (WMJ) (D.N.J. Aug. 20, 2013).  The plaintiff was a registered nurse and paramedic at Monmouth-Ocean Hospital Service Corp. (“MONOC”).  … Continue Reading

Key United States Supreme Court Decisions Affecting Labor and Employment for the 2012-2013 Term

EMPLOYMENT DECISIONS Vance v. Ball State University: Narrow Definition of Supervisor in Harassment Suits In Vance, the Supreme Court announced a narrow standard for determining which employees constitute “supervisors” for purposes of establishing vicarious liability under Title VII. In a 5-4 decision, the Court decided that a supervisor is a person authorized to take “tangible … Continue Reading

Supreme Court Delivers Another Arbitration Victory For Employers But Challenges Remain

Last week, in American Express Co. v. Italian Colors Restaurant, the United States Supreme Court, in a 5-3 ruling, reversed the Second Circuit and held that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery.  … Continue Reading

NLRB Releases Guidance On Workplace Investigation Confidentiality Policies

Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s Office of the General Counsel recently released a memorandum providing additional guidance on the confidentiality of internal workplace investigations.  Banner Health held that to require confidentiality of investigations, an employer … Continue Reading

NLRB Reverses 50-Year-Old Precedent; Strips Employers of Longstanding Economic Leverage During Contract Negotiations

In numerous prior posts, we have reported about the pro-labor decisions and regulatory changes by the Democratic-majority National Labor Relation Board.  Unfortunately, the Board is at it again, this time in WKYC-TV, Inc., 359 NLRB No. 30 (2012) , reversing a fifty-year-old precedent regarding the effect of contract expiration on a dues checkoff clause contained … Continue Reading

NLRB Finds At-Will Clauses In Two Employee Handbooks Are Lawful

The National Labor Relations Board’s (“NLRB”) General Counsel recently released an analysis of contested at-will employment clauses in two employment handbooks and ultimately concluded that neither violated the National Labor Relations Act (“NLRA”). Employees had filed charges with the NLRB alleging that the at-will employment clauses contained in the employee handbooks distributed by Rocha Transportation, … Continue Reading
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