Archives: Labor Relations

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Tell everybody: Confidentiality clauses may violate employees’ section 7 rights

In a recent decision issued on March 21, 2019, an administrative law judge (ALJ) held that confidentiality clauses in arbitration agreements violate the National Labor Relations Act (the Act). Specifically, the ALJ held that such provisions run afoul of section 8(a)(1) of the Act, and unlawfully require a waiver of employees’ rights under section 7 … Continue Reading

Not so fast … New York City Council proposes ban on no-cause firings

A New York City Council member recently proposed an amendment to the New York City Human Rights Law (NYCHRL) that would restrict fast food establishments from firing employees without “just cause.” The purported reason for this amendment is to provide more job security to fast food workers. The bill defines “just cause” as an “employee’s … Continue Reading

National Mediation Board proposes simplifying decertification under the Railway Labor Act

On January 31, 2019, the three-member National Mediation Board (NMB), which oversees labor relations for the airline and railroad industries, published a proposed rule-making to simplify the process for workers covered by the Railway Labor Act (RLA) to decertify the unions representing them. Currently, RLA-represented employees seeking to decertify a union must identify an individual … Continue Reading

NLRB returns to more employer-friendly independent contractor test

In a recent decision involving SuperShuttle drivers, the National Labor Relations Board (NLRB or Board) overruled a 2014 decision making it less likely a worker would be deemed an independent contractor, returning to the more employer-friendly common law test to determine independent contractor status. In 2014, the Board purported to clarify the standard for evaluating … Continue Reading

Seventh Circuit limits ADEA’s scope, but beware state law

The U.S. Court of Appeals for the Seventh Circuit recently reversed its prior decision and upheld an Illinois district court ruling that the federal Age Discrimination in Employment Act (ADEA) does not protect job applicants from disparate impact claims. But beware, as this seemingly apparent win for employers in Illinois, Indiana, and Wisconsin may drive … Continue Reading

San Francisco increases costs and requirements for employers in 2019

San Francisco’s Office of Labor Standards Enforcement (OLSE) continues to raise the cost of doing business at the foot of the Golden Gate by requiring employers to provide some of the most generous benefits to employees in the United States. The OLSE has amended certain of its rules regarding employer obligations, and will begin enforcing … Continue Reading

NLRB clarifies standard for protected concerted activity

On January 11, 2019, the National Labor Relations Board clarified and narrowed the standard for finding that an employee engaged in protected concerted activities under the National Labor Relations Act. See Alstate Maintenance, LLC, 367 NLRB No. 68 (2019). In doing so, the board overturned a 2011 decision – WorldMark by Wyndham, 356 NLRB 765 … Continue Reading

High court finds independent contractor truck drivers excluded from FAA

On Tuesday, January 15, 2019, the U.S. Supreme Court found that truck drivers classified as independent contractors cannot be compelled to arbitrate their claims under the Federal Arbitration Act (FAA). See New Prime, Inc. v. Oliveira, No. 17-340, 2019 WL 189342 (U.S. Jan. 15, 2019). This decision has significant ramifications for transportation industry companies that … Continue Reading

Divided D.C. Circuit panel largely upholds the NLRB’s Browning-Ferris decision and challenges the Board’s authority to conduct rulemaking

On December 28, 2018, a divided D.C. Circuit panel affirmed, in part, the National Labor Relations Board’s (NLRB’s or Board’s) Browning-Ferris joint-employer analysis. See Browning-Ferris Indus. of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018). The D.C. Circuit’s decision marks the latest chapter in the NLRB’s ever-shifting joint-employer standard. At issue on … Continue Reading

U.S. Department of Labor issues new opinion letters on overtime compliance with varying average hourly rates and on volunteerism

The Acting Administrator for the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued two new opinion letters on Friday, December 21, 2018. The first opines on whether a home health aide service’s compensation plan, which pays an average hourly rate that may vary from workweek to workweek, complies with the Fair Labor Standards … Continue Reading

National Labor Relations Board proposes regulation to establish new joint employer rule

Yesterday, the National Labor Relations Board (NLRB or Board) announced a much-anticipated proposed regulation to establish a rule-driven standard for determining joint-employer status under the National Labor Relations Act (NLRA). The Board’s proposed rule represents a return to a more common-law-centered understanding of joint-employer relationships, establishing joint employer status based on the exercise of substantial … Continue Reading

Supreme Court Holds Public Unions May Not Charge Non-Members Fees.

The United States Supreme Court’s decision in Janus v. American Federation of State, County and Municipal Employees (AFSCME) makes clear that agency fee agreements in the public sector are unconstitutional under the First Amendment. Although Janus dealt with government employees, the potential impact on private sector employers also demands careful consideration. The Decision In Janus, … Continue Reading

Employing Workers in a Trump Administration

As a presidential candidate, Donald Trump voiced many opinions about his priorities and goals for the country. Yet as President-elect Trump prepares to take office in January, employers remain uncertain as to what the American workplace will look like under a Trump administration. As a lead-up to the presidential inauguration, we will provide a series … Continue Reading

Emerging Labor & Employment Law Trends (Part 2)

With summer 2016 almost behind us, employers should begin to plan for the major labor and employment law trends expected to emerge in the last quarter of the year and into 2017. In the first part of this two-part series, we looked at some of the principal trends likely to be shaped by federal regulators.  … Continue Reading

Emerging Labor & Employment Law Trends (Part 1)

With summer 2016 almost behind us, employers should begin to plan for the major labor and employment law trends expected to emerge in the final quarter of the year and into 2017. In the first part of this two-part series, we will take a look at some of the principal trends likely to be shaped … Continue Reading

NYC Passes Bill Targeting Grocery Industry

The New York City Council’s targeted attacks on specific industries continue unabated. After levying onerous new labor law requirements on car washes this past summer, the Council recently turned its attention to the grocery industry, passing a bill dubbed the Grocery Worker Retention Act (the Act). The Act requires that successor grocery employers retain their … Continue Reading

Judge Puts Brady Back in the Game

New England Patriots’ fans can thank U.S. District Judge Richard M. Berman if and when they see NFL quarterback Tom Brady suiting up next Thursday for the Patriots’ season opener.  Judge Berman vacated Brady’s four-game suspension for his alleged role in the 2015 AFC Championship Game’s Deflategate scandal. In July, NFL Commissioner Roger Goodell slapped … Continue Reading

The legality of employee strike action

Welcome to Reed Smith’s Monthly Global Employment Law blog post. This month’s post covers the legality of employee strikes in five key jurisdictions: France, Germany, Hong Kong, the UK and the United States. France According to the French Supreme Court, a lawful strike action is defined as a collective cessation of work, the purpose of … Continue Reading

NLRB Regional Director Says College Athletes Can Unionize

Joel Barras wrote a new article on Forbes.com discussing the NLRB Regional Director for the Chicago Region’s recent ruling that Northwestern University football players are “employees” of the University and therefore have the right to organize and be represented by a union.  If upheld, expect Division I football and basketball players from across the country … Continue Reading

NLRB Case May Give Unions Two Bites at the Apple

The National Labor Relations Board has just agreed to consider forcing employers to defend unfair practice claims twice—once before an arbitrator, and then again before the Board.  The case is Babcock v. Wilcox Constr., No. 28-CA-022625 ("Babcock"). Interested parties are invited to submit briefs to the Board on whether it should maintain, modify, or abandon … Continue Reading

NLRB Judge Invalidates Company Dress Code

A National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) partially invalidated a Honda dealer’s dress code that prohibited employees who have contact with the public from wearing pins, insignia or other message clothing. A copy of the decision is attached here. Even though the work rule applied to all messaging regardless of the topic, … Continue Reading

Employers Beware: 2014 NLRB is Unrestrained and Ready for Activism

For the first time in over a decade, the National Labor Relations Board enters the New Year with a fully constituted (properly nominated and confirmed) complement of Board Members and General Counsel. Having removed the “acting” or “recess appointee” caveat from their titles, the NLRB and its independent prosecutor are now free of many of the … Continue Reading

Federal Employment Agencies Grind to a Halt During Government Shutdown

The lights are still on but the overwhelming majority of desks are empty at the national and regional offices of the Department of Labor (DOL) and its subagencies, as well as the National Labor Relations Board, Equal Employment Opportunity Commission. These offices will continue to receive and docket filings to preserve statutory deadlines but otherwise will … Continue Reading
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