Category Archives: NLRB

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Now You, Too, Can Call Your Boss a Nasty Motherf****r

Maybe we’ve all thought it at some point in our careers. But according to the Second Circuit Court of Appeals, you might actually be able to get away with saying it—that is, calling your boss a nasty mother****r—if you’re saying it because you care about your coworkers, and if you all swear a lot at … Continue Reading

Does Your Social Media Policy Apply Globally?

The surprising EU perspective Drafting a global social media policy is a balancing act. Employers need to protect their legitimate business interests, but must do so with respect for the employees’ rights to freedom of expression. Striking the right balance depends on the legislation in force in the different countries where your company is active. … Continue Reading

Andrew Puzder Withdraws Candidacy for Labor Secretary; Trump Taps Former U.S. Attorney Alexander Acosta

On February 15, 2017, just one day before his confirmation hearing, Andrew Puzder announced that he was withdrawing his nomination to serve as President Donald Trump’s Labor Secretary. Puzder is the CEO of CKE Restaurants, which operates fast-food restaurants Carl’s Jr. and Hardee’s. Like many of President Trump’s Cabinet picks, Puzder faced fierce opposition from … Continue Reading

What’s in a “Like”?: Tips for Employers and In-House Counsel in Crafting Social Media Policies

Your colleagues are on social media.  Ninety-seven percent of online adults aged 16-64 say they have visited or used a social network within the last month.[1]  Because social media continues to grow and constantly evolves, employers need to take a proactive approach to reduce risk and exposure to litigation related to social media. In recent … Continue Reading

NLRB Takeaway: Comply, Even if You Think You Don’t Have To

The General Counsel of the National Labor Relations Board issued a recent Advice Memorandum in Northwestern University, NLRB Case 13-CA-157467, with a strange, but practical, takeaway for employers: even if you don’t think all the obligations National Labor Relations Act apply to you, you can avoid a lot of trouble if you just behave and … Continue Reading

Ninth Circuit Invalidates Class Waiver in Arbitration Agreement

In a ruling that widens the divide between federal appellate courts, the Ninth Circuit sided today with the Seventh Circuit and the National Labor Relations Board (“NLRB”) in holding that the class action waiver provision of a company’s arbitration agreement with employees violates the National Labor Relations Act (“NLRA”). Prior to this decision, the Seventh … Continue Reading

Sandquist v. Lebo Automotive, Inc.: California’s Cautionary Tale About the Importance of Drafting Arbitration Agreements with Precision

Ambiguities in employee arbitration agreements may force employers to litigate putative class action claims in arbitration. The California Supreme Court delivered this cautionary message by its recent holding in Sandquist v. Lebo Automotive, Inc. In Sandquist, the plaintiff, an African-American male, filed a discrimination class action on behalf of “current and former employees of color” … Continue Reading

Workplace Video Monitoring: What Employers Need To Know

The omnipresence of video cameras is a fact of life. The average American, aware or not, is caught on surveillance camera more than 75 times a day. Given the availability and effectiveness of inexpensive video equipment, many companies use video to monitor their entire operations for safety, security and quality control. But video surveillance can … Continue Reading

The Latest in Labor: NLRB Update, Part Two

Most employers know that the National Labor Relations Board (NLRB) has been on a years-long tear to make it easier for workers to unionize and harder for employers to resist those efforts. This post in two parts is the latest from the battlefront, with two key developments that impact unionization campaigns and employers’ responses to … Continue Reading

The Latest in Labor: NLRB Update, Part One

Most employers know that the National Labor Relations Board (NLRB) has been on a years-long tear to make it easier for workers to unionize and harder for employers to resist those efforts. This post in two parts is the latest from the battlefront, with two key developments that impact unionization campaigns and employers’ responses to … Continue Reading

Employee Manuals – Sticking to the Script: New Guidance from the NLRB

On April 7, 2016, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) ruled that five Dan Gilbert companies, including Quicken Loans Inc., Fathead LLC, In-House Realty LLC, One Reverse Mortgage LLC, Rock Connections LLC and Title Source Inc.  (the “Companies”), promulgated rules in an employee manual called “The Big Book” that workers could … Continue Reading

New York Employers – Looking Backward and Forward.

Last year was a ‘big year’ in New York in terms of new employment laws, and 2016 is shaping up to be just as big – as employers come into compliance with the many new laws, and brace for additional changes to come. Among the most significant new laws are the series of statutes signed … Continue Reading

The Second Circuit “Likes” the NLRB’s Reasoning

In recent years, the National Labor Relations Board has tended to protect employees’ social media activity against employers.  A few weeks ago, the Second Circuit upheld a decision of the National Labor Relations Board (“NLRB”) that a business violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it fired an employee for his … Continue Reading

The NLRB Confuses with Ruling on Successorship Doctrine in Cases Where Worker Retention Laws Apply

When one company acquires another company with a unionized workforce, some key questions almost inevitably emerge: will the acquiring company be bound by the acquired company’s collective bargaining obligations and union contracts? Is there an obligation to hire the unionized employees? Can they be fired? Do you have to bargain with their union? All of … Continue Reading

Former NLRB Member Reemphasizes Confusion Created by Browning-Ferris Decision

Successful businesses expand.  Sometimes they even franchise themselves, offering opportunities for other small businesses to take root.  The National Labor Relations Board (“NLRB”) decision has expanded liability for small businesses by changing the standard for when they should be considered “joint employers” – that is, just one large business instead of many small ones.  In … Continue Reading

Seventh Circuit Decision Drives Home Importance of Prudence in Communicating With Employees About Union Issues

In AutoNation, Inc. v. NLRB, the Seventh Circuit enforced a National Labor Relations Board decision that found a car dealership to be in violation of the National Labor Relations Act for interfering with workers’ efforts to unionize and for unlawful discharge of an employee. Libertyville Toyota learned that its auto mechanics were contemplating joining a … Continue Reading

Helpful Guidelines For Employee Handbook Drafting

The NLRB has recently been active in analyzing whether employee handbooks violate Section 7 of the National Labor Relations Act (the “Act”).  In light of this, it is advisable for employers to try to imagine their handbook provisions being construed restrictively, especially with regard to communications that employees engage in for unionizing efforts and discussing … Continue Reading

An Unforgiving NLRB Holds That Protecting Patient Data Under HIPAA Can Still Violate Section 7 Rights

It would make sense that the systems housing patient records at a physician’s office should be protected by a robust duty on the part of the physician’s employees to keep such records confidential. The purpose, of course, is to ensure the physician’s responsibilities under the Health Information Portability and Accountability Act (“HIPAA”) are properly carried … Continue Reading

NLRB’s Handbook on Handbooks

As we all know, the NLRB has been working hard in recent years to expand its reach beyond the union workforce – striving to make its decisions and guidance just as relevant to the non-union employer in an age where unions are on the decline.  Recent NLRB decisions have found employers liable for unfair labor … Continue Reading

No Such Thing as “No Harm, No Foul”?

Everybody knows that an activist National Labor Relations Board (NLRB) expects a lot of all employers nowadays, union and non-union. One of the areas under the greatest NLRB scrutiny are time-honored, well-worn policies that have existed in employee handbooks for years:  don’t disparage your employer; don’t say anything damaging about the company; don’t harm the … Continue Reading
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