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Posts in Labor & Unions.
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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Posted in Labor & Unions
The National Labor Relations Board (NLRB) recently affirmed the decision of an administrative law judge that FDRLST Media, LLC (FDRLST) violated the National Labor Relations Act in June of 2019 when Ben Domenech, publisher of the Federalist, published the following tweet on his personal Twitter handle: FYI @fdrlst first one of you tries to unionize I swear Ill send you back to the salt mine. Domenechs tweet was posted in response to the news of Vox Media Inc. employees walking off the job after demanding a new collective bargaining agreement. FDRLST contended that Domenechs tweet was ...
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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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Posted in Labor & Unions
Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to engage in protected, concerted activities. Such protected activities often include protesting working conditions that employees find unfair, unsafe, or undesirable. But what happens when these protected statements are coupled with inappropriate outbursts filled with abusive, harassing or profane language? Or worse yet, what if these protected statements are coupled with racist or discriminatory statements? Can employers still discipline employees for their inappropriate behavior ...
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Employers have been facing an incredible range of complex and varied issues during the COVID-19 pandemic. Not least among these have been how best to respond lawfully to workers for whom work is available but who are reluctant to work, refuse to be in the workplace, or who may be unavailable because they are sick or have been exposed to the virus. Now, as the nation begins to contemplate a reopening process that will significantly increase the number of open workplaces, these questions will arise with increasing frequency. Making sound decisions about how to respond to employees with ...
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Posted in Labor & Unions


The National Labor Relations Board (NLRB or the Board) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employers premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employers property when such activity would significantly interfere with the employers use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have ...
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Posted in Labor & Unions

Ensuring that an employer has properly designated workers as independent contractors, as opposed to employees, is an important issue. The applicable test and factors to be considered and applied when making this important determination have often changed over time, with yet another significant change being recently adopted by the National Labor Relations Board (NLRB). In a January 25, 2019, decision in SuperShuttle DFW, Inc., the NLRB relaxed the test, making it easier for a worker to qualify as an independent contractor and effectively reversing a more stringent test adopted by ...
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Posted in Labor & Unions

Joint employer liability under the National Labor Relations Act (NLRA) has been a hot topic in recent years, because the NLRA standard has been in flux and joint employer status can be a significant issue for employers. For example, under the NLRA, a joint employer may be required to bargain with a union representing jointly employed workers. In addition, a joint employer can be subject to joint and several liability for an unfair labor practice by the other joint employer and can face labor picketing that would otherwise be unlawful.

In August 2015, the National Labor Relations Board ...
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In a highly anticipated 5-4 decision, in which Justice Gorsuch cast the deciding vote, the U.S. Supreme Court overruled its own previous case and held today that a labor union may not require employees in the public sector to pay for its services. The decision, Janus v. AFSCME Council 31, may significantly weaken unions operating in both the public and private sectors and throw labor relations between government workers, their employers, and their unions into turmoil.


Until now, the Courts 1977 decision in Abood v. Detroit Bd. of Ed. had permitted public sector unions to compel payment ...
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Posted in Labor & Unions

The Chair of the National Labor Relations Board (NLRB), John Ring, confirmed on June 5 that the NLRB will engage in formal notice-and-comment rulemaking on the subject of joint employers, about which we have written many times (1, 2, 3, 4, 5). Rings announcement was made in a letter to three Democratic senators who had written to him expressing concern that the NLRB was contemplating formal rulemaking on the joint employer issue. Such rulemaking is rare for the NLRB. Candor requires me to inform you, wrote Ring, that the NLRB is no longer merely considering joint-employer rulemaking. A ...
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In a unanimous decision last month, a three-member panel of the National Labor Relations Board (NLRB) found that a restaurant company violated the National Labor Relations Act (NLRA) when its New York City location fired four employees after the employees emailed other employees and managers to complain about, among other things, work schedules, the companys tip policies, and the managements treatment of employees.


The case arose after an employee wrote an email upon her resignation complaining about managements treatment of employees, tip policies, work schedules, and more ...
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Defending a wage and hour class or collective action is one of the most difficult employment law challenges facing companies today. Penalties are steep, attorneys fees are significant, and liability can be hard to avoid. Employers should be mindful, however, that they may also face liability under the National Labor Relations Act (NLRA) if they do not properly respond to collective employee concerns raised in wage and hour lawsuits. A recent case, Village Red Restaurant Corp. d/b/a Waverly Restaurant, 366 NLRB No. 42 (2018), exemplifies the additional liability that employers may ...
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Posted in Labor & Unions
Last week we blogged about which decisions of the Obama-era National Labor Relations Board (NLRB) might be most ripe for reversal under the NLRBs new membership and General Counsel.  This week, on December 1, 2017, we got further insight into those expectations when Peter Robb, the new General Counsel issued a memorandum containing insights into his initial agenda as General Counsel.  The memorandums identification of subjects for special consideration, along with its general tone, provide further strong indications about the likelihood of coming significant policy shifts at the ...
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Posted in Labor & Unions
In September 2017, the U.S. Senate confirmed William J. Emanuel to fill the last vacant seat on the National Labor Relations Board (NLRB). Emanuel joins recent appointee Marvin Kaplan and long-standing member Philip A. Miscimarra to form the first Republican-majority board since 2009. However, these weren't the only significant developments to come to the NLRB this fall. On Nov. 8, 2017, the U.S. Senate confirmed Peter Robb, a management-side labor lawyer, to replace President Obama-appointed Richard Griffin as the NLRB General Counsel. 
While many employers have long awaited ...
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With the violent protest events in Charlottesville, Virginia last weekend, it seems particularly timely to address a recent Eighth Circuit Court of Appeals decision on potential labor law protections for racist behavior. While Judge Beam of the Eighth Circuit opined that no employer in America can be forced to employ a racial bigot, he did not persuade the rest of the Courts panel in the recent Cooper Tire v. NLRB decision.
 
In the Cooper Tire case, the Eighth Circuit Court of Appeals examined tensions between behavioral protections for picketing workers under the federal National ...
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The U.S. Department of Labor (DOL) has withdrawn two informal regulatory interpretations, issued in 2015 and 2016, on the subjects of joint employer and independent contractor liability of employers. (See our previous blog posts about the related risks for employers, available here.)
 
The DOLs announcement this week appears to signal a major course reversal in the wage and hour arena, particularly from 2016 when its Wage & Hour Division had made joint employment a major focus. This is likely true even though the DOL said, in announcing the withdrawal: Removal of the two administrator ...
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Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new presidents first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.
 
Department of Labor Developments
When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
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On Thursday, President Trump named Alexander Acosta as his nominee for U.S. Secretary of Labor following the withdrawal of his initial choice, Andrew Puzder. Mr. Puzder withdrew his name from consideration after he apparently lost support from several Republican senators necessary for his confirmation.

Mr. Acosta is Trumps first Hispanic nominee and has previously been confirmed by the Senate for multiple federal government positions. Mr. Acosta has not been as outspoken on employment and labor issues as Mr. Puzder, making Mr. Acosta's confirmation less controversial and more ...

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In our September 23rdpost, we reported that the National Labor Relations Board (NLRB) and the U.S. Department of Justice filed a petition for certiorari in NLRB v. Murphy Oil decided by the 5th Circuit Court of Appeals, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class-action waivers)are invalid under federal labor law. As we reported in September, the petition was filed in the face of a clear split among the federal Circuit Courts of Appeals. The U.S ...

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Posted in Labor & Unions

The most powerful weapon a labor union can unleash against an unwitting employer, whether unionized or not, is a strike. Strikes, however, can take different forms and arise under different circumstances. Last month, the National Labor Relations Boards (NLRB) Office of the General Counsel (GC), the prosecuting arm of the federal NLRB agency, issued a short but powerful memorandum regarding an increasingly common union tactic: intermittent and partial strikes. While the Board has generally held that such strikes are not protected under the National Labor Relations Act, the GC ...

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On September 9, 2016, the National Labor Relations Board (NLRB) and the U.S. Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class action waivers)are invalid under federal labor law. Given the clear split on this legal issue among the federal circuit courts, the Supreme Court appears likely to accept review.

What's the Split and Where Does Minnesota Stand?

Class Action Waivers Are ...

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Posted in Labor & Unions
Employers by now are likely accustomed to hearing about the National Labor Relations Board (NLRB) and its efforts to firmly insert itself into both union and non-union workplaces. For the past few years, the NLRB has issued countless decisions invalidating what have otherwise been deemed routine and sensible employment policies, such as requiring confidentiality of internal investigations, clarifying at-will employment, and prohibiting workplace bullying. Recently, however, the NLRB issued a decision involving corporate mergers and acquisitions that will impact ...
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We have previously blogged (here and here) about the expanding risks of joint employer liability under various employment laws, most prominently the National Labor Relations Act and the Fair Labor Standards Act. Recent developments underline just how prominent these risks are becoming for many businesses, including traditional employers, staffing and temp agencies, and franchised companies.
The U.S. Department of Labors (DOL) Wage and Hour Division recently announced it has obtained a federal court consent judgment and order of $1.4 million jointly against United Plastics ...
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Last week, the Eighth Circuit Court of Appeals upheld a National Labor Relations Board (NLRB) ruling that a Jimmy Johns franchisee engaged in unfair labor practices and violated the rights of workers under the National Labor Relations Act (NLRA), after the employees were terminated for staging a public campaign protesting the company's sick leave policy.

In MikLin Enterprises, Inc. v. National Labor Relations Board, employees were fired after displaying posters which protested the company's sick leave policy at the franchisee's Jimmy John's sites. The employees had ...
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As noted in a previous blog post, Justice Scalia's sudden passing last month will have a big impact on how key labor and employment cases are decided by the U.S. Supreme Court. On March 16th, President Obama nominated Judge Merrick Garland to fill Justice Scalia's seat. Judge Garland is currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The D.C. Circuit is a primary forum for challenges to administrative actions, including actions by the National Labor Relations Board (NLRB). This means that Judge Garlands judicial record is of ...
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Regardless of ones political views, the passing of a sitting United States Supreme Court Justice always has the potential to create major waves on the waterfront of federal law. But the recent death of Justice Antonin Scalia, in particular, could have significant implications for employers. There are currently several cases pending before the Supreme Court that raise important employment and labor law questions. The potential voting shifts that always follow a reconfiguration of the Supreme Court could impact the ultimate outcome of those cases.

Just a few of the employment and ...
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The National Labor Relations Board (NLRB) has just approved a ruling that certain employees (in this instance, tugboat captains) are not supervisors within the meaning of the federal labor law (the National Labor Relations Act, or NLRA). The NLRB said it drew this conclusion because the employer did not show the employer held the captains accountable for the performance of the mates whom they directed. A dissenting NLRB member complained that the Boards conclusion in this case fails the test of common sense.

The tugboat captains case makes painfully clear that identifying and ...
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Posted in Labor & Unions

When picturing a union organizing campaign, you might picture a contentious battle between a justice-seeking union and the supposedly big bad corporate employer. But, this week we saw one example of unionization in a more cooperative work environment . . . literally.

 
On Monday, workers at the Wedge Community Co-op in Minneapolis voted 76-31 to be represented by the United Food and Commercial Workers Local 1189, becoming the first cooperative grocery in the Twin Cities to unionize.
 
Co-ops tend to be all about democracy and the coming together of community members for a common ...
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The National Labor Relations Board (the "Board") continues to focus on protecting employee activity in social media outlets, as reflected by the Board's protected concerted activity page.  Last week, the Second Circuit Court of Appeals decided a case that will likely further that enforcement activity.
In Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. National Labor Relations Board, the Second Circuit upheld the Board's decision that an employee's use of the Facebook "like" and comment features can be protected activity under the National Labor Relations Act ("NLRA").  ...
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Posted in Labor & Unions
The National Labor Relations Board (NLRB) continues to aggressively advance its agenda of making it easier for unions to organize new groups of workers. Just last month the Board set a new legal test for when two separate organizations should be considered joint employers for union-related purposes, including liability for unfair labor practices and responsibility for bargaining a union contract.
 

We had written previously about preventive steps organizations might take to avoid joint employer liability, and such actions should be considered now more than ever following the ...

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Much has been written in recent months about the National Labor Relations Board (NLRB) standard for joint employment liability between separate businesses, especially with respect to franchisor McDonalds Corporation, which is facing dozens of cases in which it has been named as a respondent along with its franchisees. The NLRBs General Counsel has been advocating for a change to the joint employer test currently used by the NLRB.  An arm of the U.S. Chamber of Commerce recently published a 40-page report on how the NLRBs proposed new joint employer test threatens small ...
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The federal National Labor Relations Board (NLRB) is at it again. This time, the Boards general counsel has issued a March 18, 2015, Report Concerning Employer Rules. The Report is a detailed document setting forth the NLRBs position on the types of employee handbook policies that comply with or run afoul of Section 7 of the federal National Labor Relations Act (NLRA).  Under Section 7, all non-management employees have a legally protected right to engage in group activity aimed at improving their terms and conditions of employment. Many employers are surprised to learn that ...
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Posted in Labor & Unions

Since the end of last year, we have been blogging about the rapidly-changing environment for labor relations and union organizing in light of new positions and rulings of the National Labor Relations Board.

As a follow-up to our recent posts (see here and here) I'm sharing my top-five list of preparation steps for employers. Of course, every employer has to assess its unique risks of union organizing activities and make reasonable choices about how much and where to invest in preparation and prevention. When you make that assessment and those choices, however, keep in mind that ...

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As we all get started on our New Years resolutions, employers should add one more to their list revising any email policies. In the waning days of 2014, the National Labor Relations Board (NLRB) issued an important email ruling that affects all employers, whether unionized or not. In the Purple Communications case, the NLRB held that non-management employees with access to their employers email system have a presumptive right to use that system during non-working time to communicate about union organizing or about other topics related to improving their wages and working ...

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Posted in Labor & Unions

Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for ...

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The National Labor Relations Board has been busy this holiday season. In the last few weeks, the Board has pushed ahead with its quickie election rules and changed the analysis it uses to determine whether to assert jurisdiction over faculty at religious institutions of higher education, and whether faculty members are managerial employees with a protected right to unionize. In addition, the Board ruled earlier this month that employers must generally permit employees to use company email systems for a variety of protected labor law activity, including union organizing. Then ...

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The National Labor Relations Board continues to focus on employer social media policies and employee discipline for online activity.  In a ruling this week involving Triple Play Sports Bar & Grill, the Board concluded that Triple Play unlawfully fired two employees for their response to a co-worker's Facebook post.  One of these employees had only responded to the post by clicking the Facebook like option on the post.  The Facebook post at issue related to the employer paying taxes, and the Board concluded the exchange about the post, including the like response, was a protected group ...

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Adjunct faculty members at the University of St. Thomas Monday voted overwhelmingly against union representation by the Service Employees International Union (SEIU) Local 284Gray Plant Mooty's Labor Law and Higher Education Practice Teams served as labor counsel to St. Thomas in the union representation process. Since the union filed its petition for an election on May 23, GPM has been working intensively with the General Counsels office at St. Thomas to advise on the labor law, handling matters before the National Labor Relations Board (NLRB), assisting the university's ...

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As if to accentuate the timeliness of last weeks post on the surge in non-traditional union organizing, adjunct faculty organizing in the Twin Cities has been in the news again this past week. The Service Employees International Union, or SEIU, is targeting additional local institutions for adjunct faculty organizing. In addition, the Macalester College adjunct faculty vote has been postponed, with union organizers claiming both sides need more time to consider the issues underlying the vote. Several outspoken adjunct from Macalester have voiced opposition to the ...
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While union membership has declined precipitously over the last few decades, union activity is now popping up in many new sectors.  From 1983 to 2013, according to the Department of Labor, union membership dropped from over 20% of the U.S. workforce to a little more than 11%. The public sector, particularly in the areas of education and protective services, still has the highest unionization rate.  In the private sector, the areas of utilities, transportation, and telecommunications represent the highest rates of unionization.

In recent years and months, however, we've seen a growth ...

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Employers see social media as a new and different form of communication by their employees, requiring careful consideration and special policies. But according to a recent decision from a National Labor Relations Board Administrative Law Judge, online communications are analogous to a form of communication that has been in workplaces for decades  water-cooler talk.  In The Kroger Company of Michigan, the judge ruled that employers may run afoul of Section 7 of the National Labor Relations Act ("NLRA") by placing certain limitations and burdens on their employees' online ...
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There has been a storm of comment and controversy since the National Labor Relations Board ruled last week that scholarship football players at Northwestern University are employees of the school who have the right to unionize under the federal labor law governing private sector employers. The College Athletes Players Association (CAPA), the union seeking to represent the players, is moving ahead full-steam with a vigorous persuasive campaign to convince the 87 Northwestern football players to vote for union representation when the NLRB conducts its election soon. On its ...
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This weeks news included advice to employers on tackling mobile device issues in the workplace while, on other fronts, Division I football players tackled labor laws. On Wednesday, the Chicago regional office of the National Labor Relations Board ruled that Northwestern University football players are employees under federal labor law and, therefore, can unionize. Northwestern University has announced plans to appeal, and well be monitoring this legal development and its implications closely. Meanwhile, employers continue to struggle with employees using mobile devices ...
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Last week, the Northwestern University football team shook up the playbook by taking the unprecedented step of petitioning the National Labor Relations Board for a union election. The result to be determined will have a significant impact on the relationship between higher education institutions and their student-athletes, as well as potentially many other students who receive aid in consideration of services performed to the benefit of the schools, such as graduate assistants. 
 
Under the leadership of star quarterback Kain Colter and with financial support from the United ...
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As turkeys and pumpkin pie ingredients fill grocery carts across America, employee privacy issues fill the workplace.  A recent survey shows that younger employees, ages 18 to 25, are more concerned about their privacy in the workplace than their older counterparts.  Meanwhile, some employers are beginning to use surveillance cameras in the workplace to improve safety and efficiency, the way coaches use game film to improve their sports teams performance.  But, back to Thanksgiving.  In the holiday spirit, were providing you information about apps to help you stuff ...
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The National Labor Relations Board (NLRB) appears ready to extend its jurisdiction over certain private and religious schools that were previously thought exempt from the NLRBs reach. If it does assert jurisdiction in these cases, the NLRB will act to protect union efforts to organize the schools faculty and other workforces. And just as significantly, an assertion of NLRB jurisdiction over these schools will clearly usher in the potential for direct NLRB involvement in deciding school policies.
The NLRB has several cases involving religious schools lined up for review, the ...
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This week, people around the world remembered the anniversary of 9/11, and President Obama continued to contemplate actions against Syria. Even passive users who may not read the newspaper experienced these events through technology and through hashtags like #neverforget or #syria. Also this week, in the midst of somber news and remembrance, a distraction emerged in the form of two new iPhones featuring new colors and fingerprint identification technology. For every new form of technology, however, there is also a spate of new lawsuits. This week, for example, a U.S. district ...

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This week, Labor Day and National Payroll Week served as good reminders that our post-recession economy is different and the way people work within it is also different. Although the number of jobs has grown, part-time work is becoming the new normal, and virtual work meant that some labored even in the midst of their Labor Day barbecues. National Payroll Week celebrated wage earners and payroll professionals, while polls show that the payroll-to-population employment rate fell in August, and the number of households with union members continues to drop.
 
This changing nature of the ...
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Given a recent uptick in court rulings enforcing class action waivers, it may be time to revisit whether your company prefers to resolve disputes with employees in court or through arbitration. Class action waivers in arbitration agreements have been gaining in popularity with employers since the U.S. Supreme Court upheld an arbitration clause containing a class-action waiver in the AT&T Mobility v. Concepcion case in 2010 and again this year in the American Express Co. v. Italian Restaurants case. These Supreme Court cases involved consumer disputes, but numerous employers ...

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Last week, I presented an employment law update at my firms annual Health Law Institute.  While the presentation was aimed at employers in the health care industry, it also involved a review of recent state and federal law developments that affect all employers.  I knew the audience would be looking for practical take-aways, so I put together a checklist of employer to-do items in light of the recent developments.   I thought the readers of this blog might appreciate a list too.  So here are some important employment law compliance to-do items:

     1.  Post the new FMLA poster, update your FMLA ...

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When news broke about the NSA surveillance program, privacy became a hot topic. This week, the debate about how to maintain privacy in the digital age continues with Facebook's recent release of its Graph Search function to the general public. Seemingly inconspicuous information on a Facebook user's profile can now be quickly and easily pulled up in a public search. While the implications of this function are yet to be seen, it will likely create an additional wrinkle in how employers respond to employee social media use.

Other technology news this week focused on the interaction ...

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We hear a lot about individuals' social media accounts getting hacked, but the events of this week remind us that company social media accounts are vulnerable as well. The Twitter accounts of both Burger King and Jeep were broken into and changed. Burger King's profile picture was changed to a McDonald's logo, and the account tweeted that McDonalds had bought Burger King. Jeep's account was changed to look like it was a page for Cadillac and to state that Jeep had been sold to Cadillac because it caught its employees doing pain medication in the bathroom. Both accounts appear to have been ...

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Today is Presidents Day, or, as it is officially called, Washington's Birthday.  We also celebrate Black History Month each February, making this month a time for reflection on the long history behind our country's efforts towards achieving equality in the workplace.  In honor of both Presidents Day and Black History Month, I'm sharing the list below of Presidents who were in office when our country passed some of its landmark federal civil rights or employment laws, along with some interesting facts about each of the Presidents who played a role in the history behind our current ...
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Posted in Labor & Unions
In follow-up to my colleague Abigail Crouses blog post last week about the unsettled law regarding at-will disclaimers, this weeks post will include tips on drafting at-will disclaimers that do not violate the NLRA.  For background, here is the NLRBs advice on several specific at-will disclaimers.
Language
I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.
No representative of the Company has authority to enter into any agreement contrary to the ...
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Election Day is almost upon us. The good news is that election ads and calls will soon be over.  For employers, however, one last challenge remains as they figure out how to deal with the many workplace issues surrounding elections.  For an overview of the potential free speech, labor law, social media, and voting leave implications for the workplace, please read my colleague Angela Ruds post from last month.
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It's official. In California, you may now eat, read, or even sleep while driving to work. That is, if you are riding in a self-driving car. On Tuesday, the California governor signed a law that permits and regulates the driving of autonomous cars on California roads. While some may be skeptical, Google co-founder Sergey Brin touts these cars as improving transportation safety, increasing mobility of persons with disabilities, and making commutes more productive. He expressed hopes that these cars will be on the roads in less than five years.


On the other side of the country, states are ...

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Having a rough week? Be thankful you aren't in the limelight, where technology is waiting to capture your every misstep. From Kate Middleton's topless photos to Mitt Romney's leaked fundraising remarks, nobody seems to be able to catch a break this week. Even Washington Redskins receiver Josh Morgan felt the Twitter-wrath of disappointed fans after his unsportsmanlike conduct penalty arguably contributed to the Redskins' 3-point loss on Sunday. But that doesn't mean these celebrities aren't fighting back. The British royal family has already mounted a privacy lawsuit against ...
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Posted in Labor & Unions
Despite an employer offer for substantial wage and other compensation increases over four years, the Chicago Teachers Union has taken its members out on strike this week, leaving some 350,000 Chicago Public Schools students wondering what to do with their time and energy. What great divide between the Union and the Schools has precipitated this strike? Primarily, it is the Chicago Public Schools proposal to initiate a new performance evaluation system for teachers, to be implemented gradually and by a joint employer-union committee. In the tradition-bound world of big ...
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As technology continues to change, so too do employers' efforts to keep up. With new laws preventing employers from using passwords to access employees' Facebook pages, employers are finding other ways to monitor employees' online activities.  A new Gartner report predicts that by 2015, 60% of businesses will be using Internet-monitoring technologies to monitor employees' social media use. However, employers must be careful in their quest to control online employee expression. This week, the NLRB issued a social media report cautioning all employers (even those ...

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This week, technology brings trouble for employees and students, but benefits for the government and its citizens. In Massachusetts, a firefighter's emails were used against him in a sexual harassment investigation. Nearby, a Rutgers student was sentenced to 30 days in jail for using a webcam to spy on his roommate, and a Boston University student's plea for the Supreme Court to review his $675,000 fine for illegally downloading music was rejected. The government, on the other hand, is using technology to solve--rather than create--problems. Federal agencies are using apps to ...

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Posted in Labor & Unions
To post or not to post?  Employers now have a temporary answer. The D.C. Circuit Court of Appeals has issued an order blocking implementation by the National Labor Relations Board of its announced rule requiring private employers to post a Notice of Collective Bargaining Rights by April 30. We have previously written (click for The Modern Workplace and Employment Edge) about the Notice posting rule. Now employers will not be required to post the Notice until at least some time later this fall. This does not affect in any way the underlying collective bargaining rights that were the ...
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As the law attempts to keep up with technology, judges often must draw difficult lines concerning social media and individual rights.  A recent ruling by an NLRB administrative law judge held that a provision in an employer's social medial policy prohibiting any online commenting on work-related legal matters was too broad.  However, the judge upheld another portion of the policy prohibiting unapproved posting of photos showing employees in uniform.  A Washington case asks whether an employer engaged in disability discrimination when it fired an employee after ...
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This week two events have dominated the Web:  Facebook filed for a $5 billion initial public offering, and the New York Giants and New England Patriots are preparing to face off in Super Bowl 46.  But don't get so caught up pondering Mark Zuckerberg's net worth that you overlook the other stories this week concerning technology, the law, and the workplace. Get up to speed on all of it and then pick out your favorite apps for Sunday's big game - the kind for your phone, not your stomach. 
Technology and the Law
Facebook Files for $5 Billion IPO (CNNMoney)
Google Defends Privacy ...
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Posted in Labor & Unions
The National Labor Relations Board has adopted procedural rule changes that would alter how the union representation process unfolds by accelerating the timeline from petition to election.  These and other proposed changes have caused alarm because they are perceived as an effort by the Board to restrict employers right to communicate opposition to union organizing.  But another cause for concern should be the administrative headache, nay migraine, the Boards new rules will likely create. 


If you're a non-union employer, you may be caught off guard by the administrative burden, not ...

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Posted in Labor & Unions
Among other developments at the National Labor Relations Board (NLRB), as it prepared for another period of inertia brought on by lack of a quorum, the agency announced near the end of last month that it has agreed to postpone the effective date of its employee rights notice-posting rule.  The postponement is at the request of the federal court in Washington, DC, which is hearing a legal challenge regarding the rule. We have previously written about the new NLRB rule requiring employers to post a notice of collective bargaining rights along with their other workplace postings. April ...
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The headline news this week is the report from The National Labor Relations Board summarizing recent social media opinions and offering additional guidance.   Analysis from commentators and bloggers is only beginning to appear online, and we will be sure to include the most relevant and incisive articles in future postings.  Our impressions are posted just below.

In the broader world of technology, HP's decision to stop producing Web OS products and sell their TouchPad tablet at the fire sale price of $99 prompted comments from legions of tech bloggers.  The most concise ...

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Over the last year, Regional Directors of the National Labor Relations Board have initiated several high-profile complaints against employers for policies and conduct related to social media.  (See Megan Anderson's article about this trend here.)  In these complaints, the NLRB has alleged that employers violated Section 7 of the National Labor Relations Act by maintaining overly broad social media policies or by disciplining employees for protected concerted activity (or both).  However, many of the cases have settled, and none have advanced to trial, leaving a trail of ...

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Do you believe in the saying that bad things come in threes?  Well, at least for employers, that saying rings true this week given the announcement that the National Labor Relations Board (NLRB) has filed a third labor law complaint related to adverse employment actions allegedly based on Facebook postings by employees.  The increasing frequency with which the NLRB is seeking to enforce its stance on Facebook postings is further reason for employers to consider adopting carefully drafted social media and technology policies, related policies on solicitation and distribution in the ...
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This week, the National Labor Relations Board once again waded into the controversial waters of social media. Earlier this week, the Regional Director in Buffalo, New York issued a complaint against a nonprofit employer for its discharge of five employees based on statements made by the employees on Facebook. According to the NLRB's press release:
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworkers allegation that employees did not do enough to help the organizations clients. The initial post ...
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The news this week in the world of labor and employment law and technology can be summed up in two words:  Charlie Sheen.  (I would have also accepted Tiger Blood.)  Our own Megan Anderson wrote about the fiasco and its lessons for employers about responding to negative statements on the Internet.  One day later, Sheen filed suit in California state court, alleging a variety of claims includingas Jon Hyman predicteddisability discrimination!
 
Although the news coverage (and, lets be honest, your Facebook news feed) made it seem like Charlie Sheen was the only big news story this week, there ...
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I'm not normally one to read advice columns in newspapers. However, Mondays Ask Amy column in the Star Tribune was right up my alley. The column tells the story of a customer service employee who was fired because an angry customer tweeted about her experience with the employee and got the attention of corporate headquarters.

This story comes on the heels of the news last week that a settlement was reached in the nationally publicized Facebook firing case. In that case, the NLRB filed a complaint against an ambulance service company that fired an employee for venting about her supervisor ...
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