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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 Tuesday, December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the National Labor Relations Board (the Board or NLRB) held that requiring employee confidentiality during workplace investigations does not constitute an unfair labor practice under the National Labor Relations Act (the Act or NLRA). This is yet another employer-friendly decision in a series of recent rulings overturning Obama-era Board precedent.

Back in 2015, the Board held that employers could require confidentiality during workplace investigations only where they demonstrated that confidentiality was necessary to preserve the integrity of the investigation. See Banner Estrella Med. Ctr., 362 NLRB 1108 (2015), enforcement denied on other grounds 851 F.3d 35 (D.C. Cir. 2017). This standard created a difficult situation for employers, placing the burden on them to determine if there was a need for confidentiality that outweighed any potential impact on workers’ NLRA rights. Moreover, the standard also conflicted with guidance from the Equal Employment Opportunity Commission (EEOC), which encourages employers to keep investigations confidential to protect victims and to encourage reporting.Continue Reading NLRB greenlights employer rules requiring employee confidentiality during workplace investigations

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

The National Labor Relations Board (Board or NLRB) issued on Friday its first proposed regulation in a series that will overhaul parts of union election procedures. The Board’s 113-page proposed rule, which was published in the Federal Register today, Monday, August 12, modifies three of the board’s election processes: (1) the handling of blocking charges; (2) the voluntary recognition bar; and (3) certain collective bargaining relationships involving employers in the construction industry. This piecemeal approach is consistent with Board Chairman John Ring’s statements at the American Bar Association’s labor and employment conference last November and is part of the rule-making agenda the Board announced in May.

Under the Obama administration, the Board passed the “quickie” or “ambush” election rule, which significantly shortens the time between the date an election petition is filed with the NLRB and the date the election is held, requires preelection hearings to be held very shortly after the filing of a representation petition, and requires employers to provide union representatives with far more information on potential voters than in the past. These new procedures were derided by employers and business groups, which was most clearly evidenced in 2017 when the Board received over 7,000 responses to its invitation for comments on whether to roll back these changes.

In the Board’s Friday announcement, a three-member majority, over one Board member objection, said, “The board believes, subject to comments, that the proposed amendments will better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a board-conducted secret ballot election.” Chairman Ring added, “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom.” The Board’s lone Democrat, Lauren McFerran, objected to the proposed rule-making.
Continue Reading NLRB publishes proposed changes to union election procedures

Under California Labor Code 2751 (amended in 2012), effective January 1, 2013, employers must provide all commissioned employees who render services in California with a written contract detailing the method by which the commission shall be computed and paid.  This law applies to all employers (both in-state and out-of-state) who pay commissions to employees working in California. Continue Reading Got “Receipt”? Effective January 2013, Employers Must Have Written Contracts for Commissioned Employees Working In California

The National Labor Relations Board’s (NLRB’s) Acting General Counsel Lafe Solomon issued his third report on social media cases handled by the NLRB. Copies of all three memos are available here, here and here, in the order issued. Our previous blog post discussing the second memo can be found here.

The most recent, third report reviews 7 social media policies, finding 6, at least in part, violative of the National Labor Relations Act. Solomon found  the seventh policy compliant with the Act and attached that full policy to his memo.

Extracted from the six “violation” cases are the following examples of impermissible elements of social media policies.Continue Reading NLRB General Counsel Issues Third Report on Social Media Cases

The District of Columbia Circuit Court of Appeals granted a motion for an injunction pending appeal filed by national trade associations challenging the NLRB Posting Rule that requires all employers covered by the National Labor Relations Act to post a notice informing employees of their rights under the Act.  In granting the motion to enjoin…

As we have discussed in earlier posts found here and here, several national trade associations challenged the NLRB’s Rule that requires all employers covered by the National Labor Relations Act to post a notice notifying employees of their rights under the Act. In response to those filings, a federal district court upheld the posting requirement, but struck down the Rule’s enforcement provisions that considered an employer’s failure to comply with the posting requirement an unfair labor practice. The court similarly struck down a provision within the Rule that extended the time an employee could file an unfair labor practice against an employer that failed to comply with the posting requirement.
Continue Reading NLRB Posting Requirement Upheld, But Enforcement Limited

This post was also written by Samantha M. Clancy.

The National Labor Relations Board’s (NLRB’s) Acting General Counsel Lafe Solomon recently issued a report on social media cases handled by the NLRB. This second report—he issued his first in August 2011— provides guidance to employers in developing and enforcing social media policies to comply with the National Labor Relations Act (NLRA). Copies of his two memos are available here and here.Continue Reading NLRB General Counsel Issues Second Report on Social Media Cases