During the last half of May 2020, the National Labor Relations Board (Board) issued four decisions upholding the legality of employer facially neutral work rules. Two of the decisions applied the Boeing standard to assess the legality of work rules or policies while the other two decisions restored past precedent to find that an employers’ property rights outweighed employees’ right to engage in protected activities under §7 of the National Labor Relations Act (Act). The key highlights of those decisions, including guidance on  drafting work rules and policies that are lawful under the Boeing standard, are summarized below.
Continue Reading NLRB Decisions Restore Employers’ Right to Use Work Rules to Control Workplace

Key Points

  • Media policies which prohibit employees from communicating with the media must be narrowly tailored to protect legitimate business interests such as protecting confidential information and controlling statements made on behalf of the employer; and
  • Media policies that specifically exclude communications by employees that are not made on behalf of the employer and that

On March 16, 2020, the Board issued its decision in Baylor University Medical Center and Dora S. Camacho reversing the 2018 ALJ decision and holding that Confidentiality and No Participation in Third-Party Claim provisions in a voluntary severance agreement are lawful. The decision overrules Clark Distribution System, Shamrock Foods Co., and Metro Networks to the extent the holdings extend beyond their fact patterns involving employees who were unlawfully dismissed for exercising their rights under the National Labor Relations Act (Act).
Continue Reading Confidentiality and No-Participation Provisions in Voluntary Severance Agreements Lawful

COVID-19 presents a formidable health and safety challenge to employers, and unionized employers also must address issues in the context of their obligations under the National Labor Relations Act (NLRA) and a collective bargaining agreement. The broad range of issues includes both mandatory subjects of bargaining and business decisions that impact the employees of the bargaining unit. Such issues include health and safety concerns, attendance and staffing issues, wage and hour issues, leave issues, changes in work schedules, layoffs, and temporary reductions in hours or closure of the business to reduce infection rates. Missteps in effectuating these major changes can lead to violations of the NLRA and an increase in the incidence of workers refusing to work. Employer’s ability to navigate these issues successfully requires an understanding of their rights under both the collective bargaining agreement and federal law in this novel situation. Here are some key considerations and proactive measures employers can take to facilitate timely and decisive employment actions.

Continue Reading Labor Relations Issues and COVID-19: Avoiding NLRA Violations through Proactive Measures

Although the National Labor Relations Act was initially established to assist unions in organizing employees, its scope is much broader as it also protects employees’ rights to engage in “protected concerted activity.” The NLRB’s interpretation of what constitutes protected concerted activity has fluctuated over the years and, in particular, under the Obama administration it expanded

The United States Supreme Court settled a controversy that had been brewing for half a decade as to whether the Federal Arbitration Act (“FAA”) made enforceable individual agreements to arbitrate employment-related claims in the face of the National Labor Relations Act (“NLRA”) which is seen to protect individuals’ rights to join together and participate in protected “concerted activity” under Section 7 of the NLRA. In a 5-4 decision, written by Justice Neil Gorsuch, the Court found such class or collective action waivers in arbitration agreements to be enforceable and overturned the decision of the Seventh Circuit in Epic Systems Corp. v. Lewis, (7th Cir. 2016), while resolving a split in the Circuits on this issue. With the resolution of this uncertainty, many other employers may consider individual arbitration agreements, waiving class or collective action, for their employees.
Continue Reading A Significant Victory for Employer Use of Individual Arbitration Agreements

The National Labor Relations Board found that a union committed an unfair labor practice by repeatedly blocking ingress and egress to a hotel for periods of one to four minutes. The opinion provides details about the union’s picketing efforts as a part of an organizing campaign. The blockage occurred during at least ten separate occasions

On December 14, 2017, the National Labor Relations Board (the “NLRB” or the “Board”) overruled Obama-era precedent involving two highly controversial decisions governing employee handbooks and joint employment standards.

Earlier this year, President Trump appointed two Republicans to the five-member NLRB resulting in a 3-2 Republican majority for the first time in a decade.  As anticipated, the new “Trump Board” is beginning to dismantle a series of decisions that many believed to unfairly favor unions.

New Standard Governing Employee Handbooks

In a split 3-2 decision, the Board majority in  . overturned its 2004 Lutheran Heritage standard, which had been used in recent years to render countless employer policies and rules unlawful.  The former standard provided that a policy or rule is unlawful if employees could “reasonably construe” the language to bar them from exercising their rights under the NLRA, such as discussing terms and conditions of employment.  For the past several years, the Lutheran Heritage standard has been heavily criticized for failing to take into account legitimate business justifications associated with employer policies, rules and handbook provisions in addition to yielding unpredictable and sometimes contradictory results.  For example, the standard has deemed unlawful policies that require employees to “work harmoniously” or conduct themselves in a “positive and professional manner.”


Continue Reading NLRB Overturns Pro-Union Precedent Governing Employee Handbooks and Joint Employers