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Back in December, Beth West informed our readers that the NLRB had issued new (and more realistic) guidelines for evaluating whether employment policies and rules violate the National Labor Relations Act (“NLRA”). As a reminder, the NLRB issued a new two-prong test for determining if facially neutral employment policies could interfere with the exercise of NLRA rights, evaluating: (1) the nature and extent of the potential impact on NLRA rights, and (2) the legitimate justifications associated with the rule. A full analysis of the case can be found here.

The National Labor Relations Board’s General Counsel recently issued a memorandum (the “Memo”) providing guidance as to how the NLRB will enforce workplace policies, in light of that decision. The Memo evaluates common workplace rules to assess whether or not such rules may be permissible, evaluating the rules under three main categories: (1) lawful to maintain; (2) warrant individualized scrutiny; and (3) unlawful to maintain.
Continue Reading NLRB Provides Guidance Regarding Permissible Policies – Are Your Policies Compliant?

On May 21, 2018, the United States Supreme Court issued its much anticipated decision in Epic Systems Corp. v. Lewis.  In a 5-4 decision written by the newest jurist, Justice Gorsuch, the Court declares that employers can require employees to arbitrate their employment disputes individually and waive their rights to resolve those disputes through class or collective actions.

Background.

The case was a consolidation of three cases (Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA, Inc.).  In each case, the employees brought a class action under the federal Fair Labor Standards Act (“FLSA”) and related state law against their employer on behalf of themselves and similarly situated employees for wage and hour violations. However, in each of the cases, the employees had entered into an agreement with their employer providing for individualized arbitration proceedings to resolve employment disputes between the parties. Although the Federal Arbitration Act (“FAA”) generally requires courts to enforce arbitration agreements as written, the employees argued that the FAA’s “savings clause” removes this obligation if an arbitration agreement violates some other federal law and that, by requiring individualized proceedings, the agreements they signed violated the National Labor Relations Act (“NLRA”).
Continue Reading GOOD NEWS EMPLOYERS – The U.S. Supreme Court Says You Can Require Class Action Waivers In Your Arbitration Agreements

In its December 14, 2017 decision entitled Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001 (“Boeing”), the National Labor Relations Board (“NLRB”) reversed itself and adopted a new and much more realistic standard for evaluating whether employment policies and rules violate the National Labor Relations Act (“NLRA”).

To…

In an attempt to gain leverage in settlement negotiations, the NLRB Office of the General Counsel issued a directive that has rocked the franchise world.  Days ago, the NLRB Office of the General Counsel determined that McDonald’s USA, LLC, the franchisor, could potentially be held liable for the employment actions of its franchisees under a…

August 30, 2013 will soon be remembered as the day the current National Labor Relations Board (NLRB) turned a corner and became a full-fledged advertising agency for union organization. On that day, the NLRB announced the release of a free NLRB mobile app for mobile smartphone users. Under the guise of “educating” employees about the National Labor Relations Act (NLRA), this unbalanced app backdoors much of the same NLRB notice-posting propaganda that was proposed, delayed, and ultimately enjoined by a Federal Court last year. Expect this app to be grouped right next to the DOL’s Time Tracking App (downloaded last year), where employees can track their hours and submit alleged violations of the FLSA directly to the DOL’s Wage & Hour Division.
Continue Reading Want to Organize Your Employer? There’s An App for That: NLRB Launches Mobile App to “Educate” Employees About the NLRA