The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace. We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants....more
In an Advice Memorandum dated April 16, 2019, but released on May 14, 2019, the NLRB’s General Counsel staked out a position in one of the most contentious and influential questions in labor and employment law today: Whether...more
5/16/2019
/ CA Supreme Court ,
Department of Labor (DOL) ,
Drivers ,
Employer Liability Issues ,
Entrepreneurs ,
Fair Labor Standards Act (FLSA) ,
Gig Economy ,
Independent Contractors ,
NLRA ,
NLRB ,
State and Local Government ,
State Labor Laws
How the NLRB treats employer statements made to employees in the context of union organizing or other protected activity has been a frequent topic of discussion. While the actual case law analyzing the coerciveness of an...more
2/14/2019
/ Administrative Law Judge (ALJ) ,
Coercion ,
Corporate Counsel ,
Employer Liability Issues ,
Hiring & Firing ,
Interrogations ,
NLRB ,
Termination ,
Totality of Circumstances Test ,
Unfair Labor Practices ,
Unions ,
Witness Statements
The right of employees to band together for purposes of bringing grievances to their employer is at the very core of the National Labor Relations Act, as embodied in Section 7. This right is called protected concerted...more
We recently saw interesting decisions from the NLRB including cases about the employer’s duty to provide information about tax cuts, the lawfulness of litigation holds, and the validity of decertification petitions.
At the...more
1/14/2019
/ Administrative Law Judge (ALJ) ,
Coercion ,
Collective Bargaining ,
Decertification ,
Employer Liability Issues ,
NLRA ,
NLRB ,
NLRB General Counsel ,
Protests ,
Right to Picket ,
Secondary Boycott ,
Unions ,
Wage and Hour
Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing. Another area of complexity comes from whether a decertification petition will be processed in the face of unfair...more
Last year about this time, the NLRB changed the standard for reviewing handbook rules. The new standard takes into consideration the fact there are many other interests other than the NLRA at play in a workplace, and seems to...more
12/24/2018
/ Data Retention ,
Duty to Preserve ,
Employee Handbooks ,
Employer Liability Issues ,
Employment Litigation ,
Litigation Hold ,
NLRB ,
Policy Memorandums ,
Protected Concerted Activity ,
Regulatory Oversight ,
Section 7 ,
Unions ,
Wage and Hour
The Board issued an interesting decision discussing an employer’s successful efforts to repudiate unlawful conduct, which we’ll get to in a minute. In our last post, we discussed a simmering dispute over the circumstances...more
The NLRB has been in a period of dormancy. When the make-up of the Board changed, a lot of people expected an onslaught of NLRB decisions reversing the reversals of precedent made by the agency in the last 8 years. Except...more
Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, not much of note has been happening at the Board. Indeed, there was not a full complement...more
One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights. NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975). Some 43 years after the Supreme Court set forth the right that...more
The Board is now operating at a full complement and is issuing decisions on a fairly regular basis. Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing....more
5/10/2018
/ Administrative Law Judge (ALJ) ,
Burden-Shifting ,
Contract Negotiations ,
Employee Misconduct ,
Employer Liability Issues ,
Employment Discrimination ,
Hiring & Firing ,
Internal Investigations ,
NLRB ,
Property Damage ,
Protected Concerted Activity ,
Right to Picket ,
Strike ,
Unions
As we have seen, there are few things that can be counted on in labor relations. Oftentimes, several experts look at the same problem and come to vastly different conclusions. What is (almost) guaranteed, however, is that the...more
3/15/2018
/ Administrative Law Judge (ALJ) ,
Charging Party ,
Credibility ,
Employer Liability Issues ,
Internal Investigations ,
NLRB ,
Reversal ,
Sexual Harassment ,
Sexual Stereotyping ,
Testimonial Statements ,
Unfair Labor Practices ,
Unions ,
Witness Statements ,
Witnesses
The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development,...more
As we have noted previously, the make-up of the Board currently stands at four out of five total members, divided evenly between two warring factions making it pretty much impossible to change the law which requires a...more
In the last few years, December has been a time of change at the NLRB. The last few Decembers have seen precedent overturned and other sweeping decisions issue from the Board.
This December is no different. With Chairman...more
The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency’s fiscal year. Not so this past September 30 because of the...more
10/10/2017
/ Administrative Law Judge (ALJ) ,
Adverse Action ,
Coercion ,
Email ,
Employer Liability Issues ,
Employment Discrimination ,
Employment Policies ,
Hiring & Firing ,
Interrogations ,
NLRA ,
NLRB ,
Professional Disciplinary Actions ,
Termination ,
Totality of Circumstances Test ,
Trump Administration ,
Unfair Labor Practices ,
Unions ,
Witness Statements
One of the fundamental pillars of any remedy doled out by the NLRB is the agency’s requirement that the employer (or union) post a “Notice to Employees,” a bright blue poster detailing the misdeeds of the charged party. Such...more
9/12/2017
/ Administrative Law Judge (ALJ) ,
Breach of Contract ,
Corporate Counsel ,
Default Judgment ,
Employer Liability Issues ,
Labor Law Violations ,
NLRB ,
Notice Requirements ,
Settlement Agreements ,
Unfair Labor Practices ,
Unions
The NLRB suffered a setback this week when its interpretation of Weingarten rights was rebuffed by the D.C. Court of Appeals. This is the same court that recently declared the agency was acting more as an “advocate than...more
8/24/2017
/ Administrative Law Judge (ALJ) ,
Collective Bargaining ,
Collective Bargaining Agreements (CBA) ,
Corporate Counsel ,
Employer Liability Issues ,
Hospitals ,
NLRB ,
Nurse Practitioners ,
Peer Review ,
Union Representatives ,
Unions ,
Weingarten Rights
When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement? We are always reasonable.” To which, the company usually responds, “We think you’re...more
Labor disputes are passionate affairs. Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified. The exact point at which the stridency of an...more
What would the holiday season be without a Christmas gift case? A perennial problem for labor relations personnel is whether the yearly Christmas turkey given to employees is something that an employer must bargain over...more
12/30/2016
/ Administrative Law Judge (ALJ) ,
Collective Bargaining ,
Collective Bargaining Agreements (CBA) ,
Corporate Counsel ,
Duty to Bargain ,
Employer Liability Issues ,
Holiday Gifts ,
Holidays ,
NLRB ,
NLRB General Counsel ,
Unions
The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law. Even though most people who practice labor...more
$300,000 In Punitive Damages Upheld In Sexual Harassment Case Despite Nominal Damages Award -
State of Arizona v. ASARCO LLC, 2014 WL 6918577 (9th Cir. 2014) (en banc).
Angela Aguilar who worked in a copper mine...more
1/14/2015
/ Bribery ,
Constructive Discharge ,
Disability Discrimination ,
Employer Liability Issues ,
Employment Contract ,
Fair Labor Standards Act (FLSA) ,
Independent Contractors ,
Intentional Infliction of Emotional Distress ,
Mining ,
Promissory Notes ,
Punitive Damages ,
Rest and Meal Break ,
School Districts ,
Security Checks ,
Severance Pay ,
Sexual Harassment ,
Wage and Hour ,
Whistleblowers ,
Wrongful Termination
Franchisor Is Not Liable For Franchisee's Alleged Sexual Harassment Of Its Employee -
Patterson v. Domino's Pizza, LLC, 2014 WL 4236175 (Cal. S. Ct. 2014) -
Taylor Patterson was hired by Sui Juris (a franchisee...more