Analysis and commentary by Reed Smith attorneys on developments in employment and labor law
Continuing a string of pro-union decisions, the National Labor Relations Board recently overruled a 2019 Board decision and held that employers violate federal law if they fail to transmit membership dues to unions after the expiration of a collective bargaining agreement.
In its 2019 decision in Valley Hospital Medical Center, Inc., 68 NLRB No.
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 appeal was the Board’s divided Browning-Ferris decision in 2015 overruling longstanding precedent and relaxing the evidentiary requirement for finding a joint-employer relationship. In December 2017, after the Board’s composition changed with two Trump administration appointments, the new Board majority overruled Browning-Ferris in Hy-Brand Industrial Contractors, Ltd. et al., 362 NLRB 186 (2017). Then, in February 2018, the Board vacated its decision in Hy-Brand, reinstating the earlier Browning-Ferris holding, deciding that one of the new Board members should not have participated in the Hy-Brand decision. With the NLRB’s earlier Browning-Ferris decision reinstated, the D.C. Circuit restored to its docket the Browning-Ferris appeal. Later, in September 2018, the NLRB announced a much-anticipated proposed regulation to establish a rule-driven standard for determining joint-employer status under the National Labor Relations Act (NLRA). With the public comment period on the proposed regulation open through January 14, 2019, the D.C. Circuit issued its decision.
In a 51-page opinion, the D.C. Circuit agreed with the Board’s determination that an employer’s mere right to control and indirect control over terms and conditions of employment are both relevant factors in the joint-employer analysis. The Court, however, faulted the Board for failing to confine its analysis to “indirect control” over essential terms and conditions of employment, rather than extending the analysis to indirect control over “routine parameters of company-to-company contracting,” which it held was inconsistent with common law precedent. Based on that distinction, the court remanded the matter to the NLRB for further consideration on that issue.…
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 direct and immediate control. The Board’s announcement explained that its proposed rule, which is subject to revision after public comment, best serves the NLRA’s purposes by imposing bargaining obligations only on those employers that actually play an active role in establishing essential terms and conditions of employment. In other words, a related business partner not actively participating in employment decisions (such as setting employee wages, benefits, and other essential terms and conditions of employment) ought not be drawn into the collective bargaining process. The Board stated:
An employer . . . may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.…
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…
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…
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…
Valerie Eifert wrote a new article on Forbes.com discussing the NLRB’s proposed amendments to its rules that would expedite the union election process and significantly limit employer participation in that process.
To read the full article, visit forbes.com.
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…
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 legal and procedural challenges that questioned the legitimacy of their recent actions.…
Continue Reading Employers Beware: 2014 NLRB is Unrestrained and Ready for Activism
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 tend to only the most extraordinary cases “involving the safety of human life or protection of property.” All other activities, including investigating complaints and public outreach, are suspended. Below is an example of the employee furlough numbers and their dramatic impact on government operations.…
Continue Reading Federal Employment Agencies Grind to a Halt During Government Shutdown
