Tag Archives: NLRB

You are Being Monitored for Electronic Surveillance and Automated Management Practices, Says the NLRB

Photo of Scott McIntyrePhoto of Sean RyanBy Scott McIntyre and Sean Ryan on Posted in Alert
On October 31, 2022, the National Labor Relation Board’s (“NLRB”) General Counsel, Jennifer Abruzzo issued a potentially spooky memorandum for employers regarding electronic surveillance and automated management. The memo sets out to restrict the “omnipresent surveillance” of employees in the advent of work at home culture. Ms. Abruzzo specifically identifies GPS tracking, video surveillance, and key loggers … Continue Reading

Not Your Godfather’s Smackdown: Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

Photo of Todd LebowitzBy Todd Lebowitz on Posted in NLRB
In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released. It’s a two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub. On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor … Continue Reading

FTC and DOJ MOUs with NLRB Reflect the Administration’s Ongoing Focus on Restrictive Labor Relationships and the Gig Economy

Photo of Daniel KaufmanPhoto of Marc AntonettiPhoto of Ann O'BrienBy Daniel Kaufman, Marc Antonetti and Ann O'Brien on Posted in NLRB
Last week, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) announced that the agencies had entered into a new Memorandum of Understanding (MOU). The FTC press release touted the MOU as a big deal, stating that it would “bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets … Continue Reading

Will states ‘come together’ to resolve remote work tax withholding issues … or will we continue ‘waiting here … on the long and winding road?’

Photo of Amy J. TraubPhoto of Michael SemesBy Amy J. Traub and Michael Semes on Posted in Remote Work
The increased number of employees working remotely has caused a host of problems for employers – and employees – during the throes of the pandemic. Now that remote work is looking more and more like the new normal, it’s more important than ever that employers and employees understand what states require and what options are … Continue Reading

A Brave, New World? Recent NLRB Rulings Concerning Mail Ballot Elections May Be The Beginning Of A New Era In Board Elections

Photo of Todd DawsonPhoto of Carlos TorrejonBy Todd Dawson and Carlos Torrejon on Posted in NLRB
Since the onset of the COVID-19 pandemic in March 2020, unions and employers alike have had to adjust to a “new normal” of mail ballot NLRB elections. Under normal circumstances, the NLRB’s preferred and standard method for conducting elections is in person, usually at the employer’s facility and – depending on the size of the … Continue Reading

D.C. Circuit Says NLRB Must Explain Its Decision-Making

Photo of Michael ParentePhoto of Peter FischerBy Michael Parente and Peter Fischer on Posted in NLRB
Court Remands NLRB Decision for Failing to Distinguish Contrary Precedent A shift in the political party at the White House generally means a corresponding shift in philosophy for the National Labor Relations Board (NLRB). Naturally then, the question many employers are asking is not “Will the NLRB swing to a pro-labor position?” but “How far … Continue Reading

NLRB: Being Abusive Is Not Protected Union Activity

Photo of Michael ChamberlinPhoto of Joseph S. PersoffBy Michael Chamberlin and Joseph S. Persoff on Posted in NLRB, Unions
Under the National Labor Relations Act (NLRA), a union member cannot be disciplined for forming or joining unions, bargaining collectively, or engaging in other activities for the purpose of collective bargaining, such as striking. But this protection does not immunize a union member from discipline for any type of inappropriate conduct while engaging in protected … Continue Reading

A Shift Toward Employers?

Photo of Amanda Van Hoose GarofaloBy Elliot Azoff and Amanda Van Hoose Garofalo on Posted in NLRB
As most employers are now aware, the National Labor Relations Board (NLRB, or the “Board”) in recent years has adopted more restrictive, non-employer-friendly approaches to what it will permit in workplace policies. These rules have been applied to union employers and just as vigorously to unorganized employers. Management labor lawyers have been placing their clients … Continue Reading

Joint Employment Update: What’s The Status of Browning-Ferris and the NLRB?

Photo of Todd LebowitzBy Todd Lebowitz on Posted in NLRB
In August 2015, the NLRB rewrote the book on joint employment, declaring in the Browning-Ferris case that the right to exercise minimal control, even if not actually exercised, was enough to create a joint employment relationship.  (Read more here.) Previously, joint employment under the National Labor Relations Act (NLRA) required the actual exercise of a meaningful … Continue Reading

NLRB “Quickie Election Rule” Upheld by Fifth Circuit

Photo of M.C. MillerBy M.C. Miller on Posted in NLRB
On June 11, 2016, the United States Court of Appeals for the Fifth Circuit upheld the National Labor Relations Board’s (the “NLRB’s” or the “Board’s”) regulations enacted last year, radically altering the traditional rules governing union elections. As we have discussed previously, the new regulations, which took effect on April 14, 2015, and are referred … Continue Reading

Tinley Park Hotel and Convention Center: The NLRB Gets Out Its Selfie Stick

Photo of Bryan O’KeefeBy Bryan O’Keefe on Posted in NLRB, Social Media
Over the past few years, many employers have found out—the hard way—that the National Labor Relations Board is serious in policing employee handbooks for provisions that the Board believes are “overly broad” under Section 7 of the National Labor Relations Act, which protects employees’ right to engage in protected concerted activity—that is, the right of … Continue Reading

Weigand v. N.L.R.B: A Double Standard for Social Media?

Photo of Meagan MartinPhoto of Pat MuldowneyBy Meagan Martin and Pat Muldowney on Posted in NLRB, Social Media
On April 17, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld a National Labor Relations Board (“NLRB” or “Board”) decision finding a local branch of the Amalgamated Transit Union (“Union”) could not be held responsible for allegedly threatening entries posted on its private Facebook page by its members during a … Continue Reading

National Labor Relations Board Permits Employees to Use Workplace Email Systems for Union Activity

Photo of Bryan O’KeefeBy Bryan O’Keefe on Posted in NLRB, Uncategorized
In a landmark 3-2 decision, the National Labor Relations Board (“NLRB” or “Board”) reversed its own precedent and found that employees now have a presumptive right to use their employer’s email system to engage in communications relating to concerted activity protected by Section 7 of the National Labor Relations Act—including union organizing—during nonworking time. Purple … Continue Reading

‘Going Postal’ Over Data Breach Response: Union Files Failure-to-Bargain Charge With NLRB Against USPS

Photo of Pat MuldowneyBy Pat Muldowney on Posted in NLRB, Unions
As recent high-profile cyberattacks have demonstrated, employers have a duty to protect their employees’ electronically stored personal information from being accessed by hackers, and to promptly remedy any breach in security concerning such information.  Depending upon the outcome of a recently filed charge before the National Labor Relations Board (“NLRB” or the “Board”), unionized employers … Continue Reading

#Insubordination: NLRB Affirms Refusal To Re-Hire Employees Based Upon Facebook Exchange

Photo of Pat MuldowneyBy Pat Muldowney on Posted in NLRB, Social Media
In prior articles, we have discussed various decisions by the National Labor Relations Board (“NLRB” or the “Board”) protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the “Act”).  Although those decisions appear to suggest that employees generally have no limits as to what they can say on … Continue Reading

NLRB Adopts New Test for Independent Contractor Misclassification, Applies it to Find FedEx Drivers are Employees Who Can Unionize

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor, NLRB
The NLRB has tossed a new vegetable into the enormous salad of independent contractor misclassification tests. As companies might expect, the new vegetable smells rotten. Companies who wish to analyze whether their non-employee workers are properly classified as independent contractors must now contend with a new NLRB test, in addition to the IRS Right to … Continue Reading

Update: NLRB’s Facebook “Like” Case Headed to Court

Photo of Pat MuldowneyBy Pat Muldowney on Posted in NLRB, Social Media
As we recently reported, the National Labor Relations Board found that Triple Play Sports Bar and Grille (“Triple Play”) had unlawfully discharged an employee because he had “liked” a former co-worker’s negative comment about the employer posted on Facebook.  In response to the Board’s decision, Triple Play has filed a petition for review of the … Continue Reading

NLRB to McDonald’s: Not Lovin’ It

By Ellen Shadur Gross on Posted in Hospitality Industry, NLRB, Restaurants, Retail
In a breathtaking announcement issued on July 29, 2014, the Office of the General Counsel of the National Labor Relations Board has authorized the issuance of complaints against McDonald’s USC, LLC in at least 43 unfair labor practice charge proceedings where the legal employer is not McDonald’s but a McDonald’s franchisee. The pending unfair labor … Continue Reading

United States Supreme Court Strikes Down President Obama’s Recess Appointments to the National Labor Relations Board—Hundreds of NLRB Decisions Invalidated

By Jeremy Hart on Posted in NLRB
In its much anticipated decision in National Labor Relations Board v. Noel Canning, 573 U.S. __ (2014), the Supreme Court of the United States has unanimously struck down President Obama’s recess appointments of Sharon Block, Richard Griffin, and Terence Flynn to the National Labor Relations Board (“NLRB” or “Board”) as unconstitutional. Accordingly, the Board was … Continue Reading

Can Employees Really Arm Themselves with Recording Devices as They Go About Their Daily Work?

By Elliot Azoff on Posted in NLRB
The Progression of Cases Involving Handbook Rules Continues Unabated— Over the last months, we have traced the Board’s and Administrative Law Judges’ rulings on the legality of handbook rules and conduct in the workplace. We have learned that an employer will often have a better opportunity of winning in a casino than under the National … Continue Reading

Closing Shop: Courts Look to Rein in the NLRB

Photo of Pat MuldowneyBy Pat Muldowney on Posted in NLRB
Over the past several years, the National Labor Relations Board (“NLRB” or “Board”) has engaged in an aggressive campaign to extend its reach into non-union workplaces with the goal of facilitating unionization.  In areas such as social media, employee confidentiality as to company investigations, and waivers of class arbitrations, the Board has attempted to expand … Continue Reading
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