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The Modern Workplace

The Modern Workplace

  • Posts by Brian N. Woolley

    Brian Woolley has a broad range of experience representing management in labor and employment matters. Brian counsels clients on day-to-day personnel matters, including issues relating to hiring and terminations, wage and hour ...

Posted in Discrimination

How should an employer react if an employee claims that mandatory anti-discrimination training conflicts with the employee’s religious beliefs? Two recent EEOC decisions shed some light on this question. In both cases, the employer provided mandatory training on treating co-workers and customers with dignity and respect to prevent discrimination and harassment. In one case, an employee sought to be excused from any portion of the training which discussed LGBTQI+ issues because he asserted that this conflicted with his sincerely held Catholic religious beliefs. In the other ...

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Posted in Labor & Unions

For decades, the National Labor Relations Board (“NLRB”) has found that secret ballot elections are the best method for determining whether workers want to be represented by a union. A recent memo from the NLRB General Counsel, however, makes it clear that the current Board is intent on making it much easier for unions to win the right to representation without a vote of the employees. The memo, GC 24-01 (issued November 2), explains the Board’s approach following this summer’s decision in the case of Cemex Construction Materials Pacific and International Brotherhood of ...

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In a memorandum released on May 30, 2023, the National Labor Relations Board (“NRLB”) General Counsel opined that noncompete agreements may violate the federal National Labor Relations Act (“NLRA”). In doing so, the General Counsel joins the Federal Trade Commission and a growing number of states in attacking the ability of employers to use these agreements. 

Section 7 of the NLRA Act protects, among other things, the right of non-management employees to organize and to act together to improve working conditions. The NLRB General Counsel takes the position that noncompete ...

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A National Labor Relations Board (the Board) decision issued this week served notice on employers that they need to carefully consider the use of confidentiality and non-disparagement provisions in any employment-related separation and release agreements. In an Unfair Labor Practice proceeding, the Board reviewed two specific terms of a separation agreement that had been offered by the employer to several employees who were being terminated. The two terms in issue were (1) a requirement that the employee keep the terms of the agreement confidential and (2) a requirement that the ...

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One legal issue highlighted by the #metoo movement is the use of arbitration to resolve workplace sexual harassment claims. Some employers require employees to sign agreements at the time of hire, or at some other time before any claim arises, in which both sides agree that any later workplace disputes will be resolved by arbitration and not in court. Because arbitration is a private dispute resolution process, some #metoo advocates have argued that arbitration of sexual harassment claims allows the misdeeds of bad actors to be concealed and, perhaps, facilitates repeat offenses ...

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Last week, the National Labor Relations Board’s General Counsel directed the Regional Offices to adopt a hardline approach to settling unfair labor practice charges. When an employee or union files an unfair labor practice charge, the Regional office will conduct an investigation. This investigation generally does not allow the employer to see any statements or other evidence provided by the charging party or its witnesses, and, in fact, the employer may not even know the identity of the witnesses. Based on this investigation, and before any hearing, the Regional Office ...

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Posted in Labor & Unions
Late last week, the National Labor Relations Board(“NLRB”) finished counting the ballots in a highly-publicized attempt by the Retail, Wholesale and Department Store Union to organize an Amazon distribution center in Alabama. The votes were mailed in over a six-week period, a process the NLRB has used to replace in-person voting since the outset of the COVID-19 pandemic. It took several days to count over 3,000 ballots, a count which resulted in a rejection of the union by more than a 2 to 1 margin. 
Despite this seemingly convincing statement by the employees, the result is likely ...
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Prior to COVID-19, virtually all union representation elections were conducted through in-person voting, often at the workplace. In mid-April, however, the federal National Labor Relations Board (NLRB) empowered its Regional Directors to exercise their discretion to order mail ballot elections when circumstances warrant. Since then, virtually all such elections have been conducted by mail because of the pandemic. Many of these decisions were challenged, generally by employers arguing that in-person voting can be conducted safely, but those objections have not been ...
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Two current developments could provide a boost to union organizing efforts. Even in normal times, a workforce that is unsettled and facing an uncertain future can be fertile ground for a union organizing effort. Employees looking for certainty and stability may be more receptive to a unions promise to solve the problems of the day. Employers should be on higher alert right now, because these are not normal times.  Workplaces may be at greater risk of union organization efforts due to the chaos in the economy caused by the COVID-19 pandemic, coupled with the following two ...

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