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In light of the U.S. Supreme Court decision on June 24, 2022, Dobbs v. Jackson Women’s Health Organization, which holds that access to abortion is not a constitutional right, employers are faced with myriad challenges moving forward. Our Labor and Employment lawyers, working with Reed Smith’s Reproductive Health Working Group, address some of

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements

Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.

The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.Continue Reading Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB

It’s that time of the year again! The deadline for California Governor Gavin Newsom to sign, approve without signing, or veto bills on his desk was October 10, 2021. Now that the dust has settled, we have compiled a comprehensive list of bills signed by the governor that will impact employers. We also highlight bills

On July 26, 2021, President Biden announced that individuals with long COVID (referred to as COVID long-haulers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).

While some individuals fully recover from COVID, others experience debilitating symptoms that last long after first developing COVID-19 (long COVID), including extreme

Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States.  Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes.  According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all.  These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.

These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations.  While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff.  Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees.
Continue Reading Responding to employee advocacy and workplace walkouts during times of protest

While all employers are facing an unprecedented whirlwind of rapidly changing circumstances as a result of the COVID-19 pandemic, employers with unionized workforces face additional challenges as they take action in response to the outbreak while trying to avoid running afoul of the requirements of their collective bargaining agreements and the National Labor Relations Act (NLRA). Here are a few suggestions for employers to consider as they navigate this new landscape.
Continue Reading Responding to COVID-19 in a unionized workplace

On December 23, 2019, in United Parcel Service, Inc., 369 NLRB 1 (2019), the National Labor Relations Board (the Board) gave employers one final holiday gift by returning to its traditional standard for post-arbitral deferral. The Board uses this standard to decide whether it should defer to arbitration awards in cases alleging the unlawful discipline or discharge of an employee under the National Labor Relations Act (the Act). Under the re-established traditional standard, the Board defers to the arbitrator’s award if the following four elements are met: (1) the arbitral proceedings appear to have been fair and regular; (2) all parties have agreed to be bound; (3) the arbitrator considered the unfair labor practice issue; and (4) the arbitrator’s decision is not clearly repugnant to the Act.

The Board changed the post-arbitral deferral standard in Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014). Under the 2014 standard, even if the arbitration procedures appeared to have been fair and regular and the parties agreed to be bound by the results of arbitration, the Board would not defer to an arbitral decision unless (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permitted the award. The burden of proof rested with the party urging deferral. According to the current Board, that change was “a drastic contraction of deferral practices that had existed for decades” and “by disfavoring the peaceful resolution of employment disputes about discharge and discipline issues through collectively bargained grievance arbitration proceedings, [the 2014 standard] disrupted the labor relations stability that the Board is charged by Congress to encourage.”Continue Reading The Board reinstates traditional deferral standard

On Tuesday, December 17, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143, the National Labor Relations Board (the Board or NLRB) held that an employer may restrict the use of its email system if it does so on a non-discriminatory basis, effectively reinstating the holding of Register Guard, 351 NLRB 1110 (2007). This is one of several employer-friendly decisions issued by the Board this week.

Five years ago in Purple Communications, Inc., 361 NLRB 1050 (2014), the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on non-working time, for communications protected by Section 7 of the National Labor Relations Act (the Act). This ruling severely restricted employers’ ability to prevent employees from using their email systems for non-work related purposes, including for unionization purposes.Continue Reading NLRB gives employers back the right to restrict employee use of work email

On December 13, 2019, the National Labor Relations Board (Board) announced a series of modifications to its representation case procedures. These modifications will be published on December 18, 2019, and are scheduled to go into effect on April 16, 2020. Unlike the Obama Board’s 2014 amendments, the current Board has elected to implement these changes without notice and comment.

According to the Board, “[w]hile retaining the essentials of existing representation case procedures, these amendments modify them to permit parties additional time to comply with various pre-election requirements instituted in 2015, to clarify and reinstate some procedures that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election, and to make several other changes the Board deems to be appropriate policy choices that better balance the interest in the expeditious processing of questions of representation with the efficient, fair, and accurate resolution of questions of representation.”

This announcement should come as a reprieve to employers after the Obama Board’s 2014 amendments, which imposed, among other things, tight procedural deadlines on employers and sped up the scheduling of elections thereby shortening the window employers had to conduct their own campaigns regarding unionization. The most notable changes are that now, elections will not normally be scheduled before the twentieth business day after the date of the direction of an election, disputes concerning unit scope and voter eligibility will normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed, and employers will have a right to file post-hearing briefs.Continue Reading Changes to the NLRB’s representation case procedures to go into effect in 2020