In an August 13 decision the National Labor Relations Board upheld an administrative law judge’s decision denying William Beaumont Hospital’s motion for an in-person hearing for an unfair labor practice charge. The charge was brought by the Michigan Nurses Association  alleging “numerous Section 8(a)(3) and (1) violations during an organizing campaign.” The Board shot down the Hospital’s “list of sundry problems” which could potentially occur during a video hearing as speculative and premature, and found that in light of the Michigan Nurses Association’s claims of anti-union tactics the judge’s decision that the pandemic constituted “compelling circumstances” warranting a remote hearing was not an abuse of discretion. The decision can be found here.

Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear  that COVID-19 pandemic or not – the same rules apply.


Continue Reading NLRB Approves Video Hearing For Nurses Against Hospital’s Opposition – But It’s Not All Bad…

How times change. In 2017, a foul-mouthed advocate of purported employee rights delighted in outing on Facebook his boss—a hard-driving banquet manager who clearly didn’t get the whole employee-relations thing—as a “nasty mother****er.” (To make his disdain inescapably clear, he also posted something about the boss’s mom.) Seldom given the opportunity to blog about something so lurid, we delighted in reprinting the post in full [note: not appropriate for children]:

Continue Reading Thanks for the Clarification: NLRB Says No, You Cannot Ordinarily Throw the F-Bomb At Your Boss

On Tuesday July 21, 2020, Kelley Drye’s Labor and Employment Practice hosted a webinar focused on best practices for navigating challenges of the “not so normal” workplace of 2020. A workplace where employers are challenged with new rules, laws, risks, and social issues brought on by the pandemic and a supercharged social and political climate.

Two news stories since Tuesday made these challenges real.

As we discussed in our webinar, employers are clearly navigating uncharted waters, including (one we discussed at length) the Black Lives Matter (BLM) movement and employers approach to handling activism in the workplace.

Now with the pandemic – this includes ‘management’ of face masks – which have become part of workplace attire for virtually everyone.


Continue Reading Consistency is Key – for Employee Masks and T-Shirts in the Workplace

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in

This week, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the National Labor Relations Board overruled a 2016 decision, and held that an employer does not have a duty to bargain over employee discipline with a union prior to reaching a first collective bargaining agreement.

The battle between a now pro-employer NLRB and labor unions continues. In the latest skirmish, the NLRB has announced its new election rule (which repeals Obama-era “quickie” election rules) will take immediate effect to the extent that a federal court has not struck provisions of the rule down.

The Obama NLRB issued rules for expedited union elections (disparagingly referred to by management-side opponents as “quickie election” rules) in 2014. Those rules deprived employers resisting unionization of many of the tools they had used for years to delay elections and vote counts, and to challenge election results they didn’t like. That all changed, unsurprisingly, with a Trump NLRB—but the NLRB’s own rulemaking process seemed pretty “quickie” itself, which became exactly the thing that labor unions challenged.


Continue Reading NLRB Elects to Implement Procedural Changes to Obama-Era Election Rules

JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST

Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel and senior associate Diana Hamar as they share practical advice for

As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.

There are three overriding rules that all employers should remember:

  1. Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
  2. Think about how you can keep your business going.  Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
  3. Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.

Below are some general answers to questions our clients have been asking.  However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.


Continue Reading Managing Your Workforce During COVID-19

With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.

Know Your Resources

Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:


Continue Reading Employer Survival Kit: Coronavirus Edition

On December 17, 2019, the National Labor Relations Board issued two decisions which dramatically overturn a pair of hotly debated Obama-era rules.

The first sets down a rule allowing employers to limit an employee’s use of workplace email to workplace-related subjects – a measure of control which was forbidden to employers under the earlier rule.

The second presents a new standard which allows employers to lawfully ban employees from discussing ongoing workplace investigations – another standard that make eminent sense in today’s “Me Too” environment.

NLRB Strengthens Employer Control Over Company-Owned Email Systems

The first of these game-changing decisions is Caesar’s Entertainment Corp, which overturns the much debated Purple Communications decision, which had limited an employer’s control over its own email system.  Caesar’s Entertainment lifts this restriction by allowing employers to prohibit workers from using company-owned email systems for non-work-related purposes, including communications regarding union organization.

Caesar’s Entertainment reverses the controversial 2014 decision Purple Communications, Inc., 361 NLRB No. 126.  In Purple, the NLRB declared that an employer may not ban employees from using company-owned email for union organizing activities after-hours unless the employer can show that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights” to use email for union-related purposes.  Equating email communications with oral communications, the NLRB reasoned that email use deserves the same special protection against employer interference as employee union organization talk.  Purple thus limited an employer’s property right in the email systems it creates and maintains, while fashioning only a frustratingly vague exception for “special circumstances.”


Continue Reading NLRB Overturns Obama-era Rules