The U.S. Supreme Court has invalidated President Obama’s 2012 "recess" appointments of several members of the National Labor Relations Board ("NLRB" or "Board"), which occurred while the Senate was in a three day recess. As a result, every decision issued by the Board between January 4, 2012, and July 30, 2013, is void, including some highly controversial decisions which negatively impacted employers. National Labor Relations Board v. Noel Canning (June 26, 2014). A copy of the Noel Canning opinion is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdfContinue Reading Supreme Court’s Noel Canning Decision Invalidates Numerous NLRB Decisions
Washington State Marijuana Legalization Law Need Not Affect Employer Drug Testing Policies
There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including customer requirements, government contracting requirements (e.g.,the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability.
Some Washington state
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 Relations Act (the “Act").
Earlier this year, an Administrative Law Judge frightened many employers by ruling a particular company’s “at-will” policy violated the Act because it theoretically could make employees believe that they could not form a union or otherwise advocate to change their at-will employment status. That challenged policy stated, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The case, American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012), was settled before the NLRB could review it on appeal.
The Division of Advice’s Halloween memoranda distinguished American Red Cross case from Mimi’s Café and Rocha Transportation – noting that the at-will policy in American Red Cross used the personal pronoun “I” (“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way”), which as written essentially constituted an impermissible waiver of any right of employees to try and change at-will status (i.e., to try to form a union). The Division of Advice also noted that the policy in American Red Cross declared that the at-will employment relationship could never be modified under any circumstances whatsoever, which could be interpreted as chilling employees’ rights under the Act to engage in protected concerted activity such as forming a union. Finally, the Division of Advice, perhaps dismissively, noted that American Red Cross had settled before getting to the Board level.Continue Reading Where There Is At-Will, There Is A Way: NLRB Issues New Guidance On “At Will” Employment Policies
Washington Appeals Court Holds No Religious Accommodation Required Under WLAD
In Short v. Battle Ground School District, Division II of the Washington Court of Appeals held last week that Washington’s Law Against Discrimination, which makes it unlawful for employers to discharge employees because of creed, does not require employers to accommodate employees’ religious beliefs.
Julie Short, a devout Christian, was employed as an assistant
UPDATE: NLRB Postpones Posting Rule Indefinitely
In response to two federal court cases we previously blogged about here and here, the NLRB has indefinitely postponed implementation of its notice posting rule pending appeals in both of those cases. The bottom line is that no employer needs to post the notice for the time being.
The U.S. Court of Appeals for
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
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
9th Circuit: Attendance Is Essential Job Function For NICU Nurse Under ADA
This week the federal Ninth Circuit Court of Appeals provided some help to employers seeking to balance the need to accommodate disabled employees with the need to enforce regular attendance policies. In Samper v. Providence St Vincent Medical Ctr, the Ninth Circuit held that the Americans with Disabilities Act (“ADA”) did not require an
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
Update – New Rule Requires Employers to Post Notice of Employee NLRA Rights
In order to allow more time for legal challenges to its notice-posting rule to be resolved, the National Labor Relations Board has again postponed the rule’s effective date, this time to April 30, 2012. Stay tuned.
For additional information regarding the NLRB’s new rule and posting requirement, including links to the new rule and the