On February 26, 2020, the National Labor Relations Board (NLRB) finalized its rule governing joint employer status under the National Labor Relations Act. The final rule generally restores the “direct and immediate control” standard that the NLRB applied for decades prior to the 2015 Browning-Ferris decision, but provides additional guidance.
Continue Reading NLRB Issues Joint Employer Final Rule

In Country Wide Financial Corporation, 369 NLRB No. 12 (2020), the National Labor Relations Board ruled that an mandatory arbitration agreement violated the National Labor Relations Act because it restricted an employees’ ability to file and pursue unfair labor practice charges before the Board.
Continue Reading The NLRB Rules Mandatory Arbitration Agreement As Overbroad

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures. The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015.
Continue Reading The NLRB Revises its Election Regulations to the Benefit of Employers

As we have previously reported, courts and the National Labor Relations Board (“NLRB”) have released a number of recent decisions favoring the enforceability of arbitration agreements in the employment context. It is now settled law that class-action waivers in arbitration agreements do not violate the National Labor Relations Act or infringe on employees’ Section 7 rights under the Act.  In a recent decision, the NLRB extended this holding to allow employers to implement arbitration programs—including those with class-action waivers—in direct response to litigation by its employees.


Continue Reading NLRB Allows Employers To Implement Mandatory Arbitration Programs In Direct Response To Being Sued

On September 20, 2019, the NLRB issued a notice of proposed rulemaking to exclude undergraduate and graduate students who perform paid work for private colleges and universities in connection with their studies from the definition of employee under the National Labor Relations Act.  The proposed rule would prevent undergraduate and graduate teaching assistants from unionizing or collectively organizing.
Continue Reading NLRB Issues Proposed Rule That Grad Students Cannot Unionize

A recent decision by the National Labor Relations Board is another in a string of decisions where the Trump-appointed Board has attempted to rebalance a property owner’s rights with the rights under Section 7 of the National Labor Relations Act of those individuals who work on the property. In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the Board overruled its previous precedent and held that a property owner may prohibit Section 7 activity by off-duty employees of a licensee or contractor performing work on the property owner’s premises.

Continue Reading Labor Board Continues Trend of Protecting Property Rights

In Cordúa Restaurants, Inc., 368 NLRB No. 43 (2019), the National Labor Relations Board issued its first major decision following the Supreme Court’s 2018 ruling in Epic Systems, addressing a number of issues of first impression and providing guidance on the permissible scope and implementation of class action waivers.  
Continue Reading The NLRB Issues Major Class Action Waiver/Mandatory Arbitration Ruling

The National Labor Relations Board has issued the first part of its planned series of revisions to labor union election procedures.  The revisions arrive five years after the Obama-era Board’s controversial 2014 changes that created the so-called “ambush election” procedures.  
Continue Reading NLRB Issues First of Its Proposed Changes to Union Election Rules

In Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019),  the NLRB adopted a new framework for determining a union’s representative status once an employer has made a lawful anticipatory withdrawal of recognition based on disaffection evidence that the union has lost its majority status. Specifically, under Johnson Controls, a union seeking to demonstrate that it has reacquired majority status must do so in a secret ballot election conducted by the Board, rather than in an unfair labor practice proceeding. 
Continue Reading NLRB Adopts New Framework in Cases of Employer Withdrawal of Union Recognition