Category: Labor

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College Football Players Are Employees? Who’s Next?

The NLRB’s Regional Director in Chicago issued a decision on March 26 in 13-RC-121359 finding the football players at Northwestern University are employees under the NLRA, over the objections of the University. The Regional Director rejected the University’s arguments that the players, who receive “grant-in-aid scholarships” from the University, are more akin to graduate students, held … Continue Reading

NLRB Re-Issues Controversial “Quickie” Union Election Rule

On February 5, 2014, the National Labor Relations Board ("NLRB") re-issued its controversial “quickie” election rule.  As you may recall, that rule, which was opposed by employer groups, the U.S. Chamber of Commerce and others, was invalidated by the D.C. District Court in May 2012.  The reissued "quickie" election rule would substantially shorten the time between the filing of a petition … Continue Reading

NLRB Effectively Scraps Plans (For Now) To Pursue Notice Posting Rule By Deciding Not To Seek Review By U.S. Supreme Court

The National Labor Relations Board (NLRB) has suffered a series of setbacks recently at the hands of federal judges.  In December, the Fifth Circuit Court of Appeals largely struck down the NLRB’s prohibition on class action waivers in arbitration agreements.  Now, on January 6, 2014, the NLRB announced that it won’t seek Supreme Court review of two U.S. Court of … Continue Reading

Foiled Again: DR Horton Overturned (But Be Careful How You Phrase Your Arbitration Agreement)

Earlier this week, a three judge panel of the Fifth Circuit Court of Appeals issued its long-awaited decision in DR Horton Inc. v. NLRB. As expected by most labor lawyers, including us, the Fifth Circuit (with one judge dissenting) overruled the National Labor Relations Board’s dramatic extension of the law, that employers could not require employees … Continue Reading

Chasm Continues To Widen, For Now, Between NLRB and Federal Courts On Enforceability Of Class Action Waivers In Employment Agreements

Just last week, in the case GameStop Corp., a National Labor Relations Board (NLRB) administrative law judge applied recent Board precedent and ignored contrary cases from federal courts to find an employer’s arbitration agreement was unenforceable because it waived the right of employees to bring class or collective actions.  While the decision has yet to be … Continue Reading

D.C. Circuit Nixes Board Notice Posting Rule In National Association of Manufacturers v. NLRB

Once again, federal courts have halted efforts by the current National Labor Relations Board ("the Board") to expand its regulatory reach. Earlier this week, in National Association of Manufacturers v. NLRB, the Court of Appeals for the District of Columbia Circuit struck down the Board’s controversial attempt to require virtually all employers to post a notice … Continue Reading

OSHA Issues Interim Final Rules on Whistleblower Protection Provisions Under ACA

The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments regarding procedures for handling employee whistleblower complaints under the Affordable Care Act (ACA), Section 1558. This part of the ACA added a new Section 18c to the Fair Labor Standards Act (FLSA), which protects employees from retaliation for exercising certain … Continue Reading

Obama NLRB Presents Employers With Several Lumps Of Coal

We continue our recent end-of-year postings (on new California employment laws and things every employer should resolve to do in 2013) with an update on recent cases by the National Labor Relations Board ("NLRB" or "Board").  In late December, 2012, the NLRB issued a series of controversial decisions which from an employer’s perspective cannot be … Continue Reading

11th Circuit Disagrees With NLRB And Finds Nurses Are “Supervisors” In Lakeland Health Care Decision

Several weeks ago the U.S. Court of Appeals for the 11th Circuit weighed in on the ongoing debate in labor law over the definition of who is a “supervisor,” and therefore not eligible to join a union, under the federal National Labor Relations Act (“NLRA”). The opinion, Lakeland Health Care Associates , is but the latest … Continue Reading

Recordkeeping: The Often Overlooked Element of FMLA Compliance

Most employers grapple with the better-known aspects of the Family and Medical Leave Act (FMLA), such as determining whether an employee’s illness constitutes a serious medical condition, obtaining required certification or providing adequate coverage for workers on intermittent leave. All too often employers focus on the leave itself and breathe a sigh of relief when notice … Continue Reading

Where There Is At-Will, There Is A Way: NLRB Issues New Guidance On “At Will” Employment Policies

On Halloween, the National Labor Relations Board (“Board”) General Counsel’s Division of Advice handed out a rare treat to employers by issuing two Advice Memos (Mimi’s Café, Case No. 28-CA-0844365 and Rocha Transportation, Case No. 32-CA-086799), deeming two particular (and common forms of) at-will employment policies contained in employee handbooks lawful under the National Labor … Continue Reading

NLRB Puts Kibosh On Some Employer Social Media Policies

The National Labor Relations Board (“NLRB”) continues to closely scrutinize employers’ social media policies and practices. As employers struggle to craft policies that promote productivity while at the same time protect employees’ rights, both unionized and non-unionized employers need to be aware of recent NLRB decisions and their impact on employer policies: Social-Media Based Termination Can … Continue Reading

NLRB’s Court Woes Continue: New Election Rules Struck Down

The Obama NLRB’s regulatory agenda continues to fare poorly in the federal courts.  On the heels of court decisions staying the NLRB’s new “notice” requirement, see previous posts here, the United States District Court for the District of Columbia Circuit has just struck down the NLRB’s new rules designed to speed up union representation elections. … Continue Reading

California Supreme Court Clarifies Meal and Rest Break Requirements Under State Law

In its long-anticipated decision in Brinker v. Superior Court, a unanimous California Supreme Court has clarified the scope of an employer’s obligation to provide meal and rest breaks to non-exempt employees in California.  The Court’s full opinion is available here. Meal Breaks California law requires employers to provide employees with a meal period of not less than … Continue Reading

UPDATE: DC Court of Appeals Delays Implementation of NLRB Posting Requirement

The NLRB’s new posting rule, which would apply to virtually all private sector employers, was scheduled to go in effect on April 30, 2012.  Yesterday, we blogged about a South Carolina federal trial court decision striking down the posting rule.  More good news for employers arrived today, as the United States Court of Appeals for … Continue Reading

South Carolina Federal Court Holds NLRB’s Notice Posting is Unlawful

As previously blogged here, a federal court located in the District of Columbia upheld the National Labor Relations Board’s (“NLRB”) rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act.  While upholding the rule, that federal court … Continue Reading

When Does Alcohol or a Controlled Substance Preclude Workers’ Compensation Benefits?

Like most states, Utah’s Worker’s Compensation statute prohibits an employee from recovering disability compensation when “the major contributing cause of the employee’s injury” is the employee’s unauthorized use of alcohol or a controlled substance. See Utah Code Ann. § 34A-2-302(3)(b). If any amount of a controlled substance or its metabolites is found in an injured employee’s system … Continue Reading

NLRB Posting Requirements – Update

Update: A federal trial court in the District of Columbia has upheld the notice posting requirement in the National Labor Relations Board’s (“NLRB”) recently issued final rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act. To … Continue Reading

Are Remedies Available to Working Moms Who Experience “Lactation Discrimination”?

For many new moms returning to work after the birth of a child, pumping breast-milk is considered to be a necessary evil.  Necessary because pumping ensures that these mothers’ babies can continue to experience the many benefits of breast-milk, and helps the mothers to maintain their milk supplies, relieves painful engorgement, and prevents potentially serious … Continue Reading

Guidance on Terminations in Alaska

  Two recent opinions from the Alaska Supreme Court offer helpful guidance to employers regarding termination processes.   In Barickman v. State, an employer suspected an employee of theft.  When confronted, the employee signed a letter of termination and then wrote a letter stating that he was resigning to avoid a “black mark on his … Continue Reading

NLRB Finds Employee Arbitration Agreement Waiving Class Claims Violates Federal Labor Law

In DR Horton, a decision issued on January 3 and applicable to most private sector employers, whether unionized or not, the National Labor Relations Board (NLRB) held that federal labor law prevents employers from requiring their employees, as a condition of employment, to agree to broad waivers that would deny their right to pursue employment-related class … Continue Reading

NLRB’s New “Vote Now, Litigate Later” Union Election Rules To Become Effective April 2012

 The NLRB gave organized labor a meaningful gift just before the holidays by issuing a final rule adopting new election case procedures that will likely result in more and faster union elections, and probably also result in more employers having unionized workforces.  The new rule becomes effective on April 30, 2012. The New Year:  Out With The Old … Continue Reading
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