National Labor Relations Board (NLRB)

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

Issuing yet another blow to commonly promulgated workplace rules, the National Labor Relations Board (“NLRB”) struck down a Whole Foods Market policy prohibiting employees from recording conversations, meetings, phone calls and other activities at work.  [Whole Foods Market, Inc., 2015 BL 424627, 363 N.L.R.B. No. 87 (Dec. 24, 2015)].  Despite Whole Foods’ explanation that the policy was specifically designed to “encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust,” and “to eliminate a chilling effect on the expression of views . . . especially when sensitive or confidential matters are being discussed,” the NLRB found that the policy could have a chilling effect on an employee’s section 7 rights. 
Continue Reading Recent NLRB Work Rule Decision Strikes Down Another Commonly Promulgated Policy

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…

NLRB: Employers cannot forbid employees from disparaging their employers and companies.

An NLRB Administrative Law Judge, following the lead of the NLRB from its recent decision in Costco Wholesale Inc., invalidated social media and other employment policies of DISH Network, Inc. Linked here is that decision. The invalidated policies (1) prohibited employees from disparaging the company on social media sites; (2) required preapproval from management before speaking about the company to the media or at public meetings; and (3) limited employee communication with government agencies.Continue Reading Employers Take Notice: Scrutinize Your Social Media Policies Now!

The NLRB added to its step-by-step expansion of union rights at the expense of employers, this time by requiring employers to “promptly respond” to even irrelevant information requests from unions. This “irrelevant” ruling is an extension of well-established NLRB case law that an employer’s duty to bargain in good faith includes the obligation to provide requested information relevant and necessary to the union’s role as bargaining representative.Continue Reading NLRB Requires Employers to Respond to Irrelevant Information Requests from Unions

In an apparent victory for employers, the NLRB’s General Counsel (“GC”) issued a pair of Advice Memoranda upholding handbook employment-at-will disclaimers comparable to provisions found unlawful several months ago by the same GC. In the Memos, found here and here, the GC concludes that the following disclaimers did not explicitly restrict employees’ protected activities and were not in response to union or other NLRA-protected activity:
Continue Reading NLRB General Counsel Backs Off Prohibiting All Employment-At-Will Disclaimers

Once again attacking personnel policies largely designed to comply with other laws, the National Labor Relations Board invalidated certain personnel policies protecting the dissemination of employee health information and personal identifiers. View the full decision by clicking on Costco Wholesale Inc.Continue Reading NLRB Nixes Still More Employer Policies in Costco

The National Labor Relations Board (“NLRB”) is expected to issue a ruling shortly on whether employers can lawfully prohibit their employees and unions from using employer-owned e-mail and intranet systems to distribute union campaign materials. An NLRB decision favoring employee and union use of these internal communication avenues for union organizing and other NLRA-protected activities would effectively extend and be the NLRB’s “blessing” of its Acting General Counsel’s social media “rules” and guidelines discussed here and here.Continue Reading Employer’s E-Mail System May Become Tool for Union Organizing