Is joint employment the issue that unites our divided government?

I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls of Washington D.C.

This issue—joint employment, via the Save Local Business Act [pdf], which clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers.

A contrary (and common sense) appellate view on rude employees and the NLRA

It’s been six weeks since I reported on NLRB v. Pier Sixty, in which the 2nd Circuit Court of Appeals held that the National Labor Relations Act protected the profanity-laced Facebook rant of a disgruntled employee. I have hoped that Pier Sixty is an aberration. Thankfully, last week the 1st Circuit came along with a well reasoned contrarian view in a case in which the alleged employee misconduct was much less severe.

6th Circuit joins the battle over class-action waivers

There has been much judicial and administrative ink spilled over the past few years over whether the National Labor Relations Act permits employers to require employees to give up their rights to litigate or arbitrate class or collective actions. This issue is one of the most important issues facing employers, which have  looked to class-action and collective-action waivers as an important weapon to fight to scourge of wage and hour litigation. 

Last week, in NLRB v. Alternative Entertainment [pdf], the 6th Circuit joined the battle. 

The National Labor Relations Act protects the rights of non-employees under other statutes‽

In MEI-GSR Holdings, LLC (5/16/17) [pdf], a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act.

Let me pause for a second to let this sink in.

This is why it matters who runs the NLRB

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the Board has vacillated on the issue of whether Weingarten rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio [pdf], the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative.

Which brings us to 2017.

Congrats to Philip Miscimarra on his appointment as NLRB Chair

I’m on record as calling Philip Miscimarra “mad as hell,” referring to his scathing dissents in recent NLRB protected concerted activity cases. I also have it on good authority that while he and I agree that the NLRB has gone off the proverbial reservation in these cases, he is not, in fact, mad as hell.

Be that as it may, he has every reason today to be as happy as he can be.

2nd Circuit holds that it’s perfectly okay for an employee to curse out his boss on Facebook (NSFW)

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

SCOTUS takes largely meaningless swipe at Obama’s NLRB legacy

Lafe Solomon

There is little doubt that under President Obama, the NLRB reinvented itself into an agency about which all employers must pay attention. One can trace much of this reinvention back to Lafe Solomon (a man with whom I once shared an NRP microphone), the NLRB’s acting general counsel from June 2010 through October 2013.

Yesterday, however, in NLRB v. SW General, Inc. [pdf], the Supreme Court held that Mr. Solomon’s tenure from January 5, 2011, through October 29, 2013, was unlawful, as it violated the Federal Vacancies Reform Act of 1998 (FVRA).

U.S. Chamber calls for common sense restoration of the NLRB … and I couldn’t agree more

To say that I have not felt overly optimistic about our nation’s course over next four years would be a bit of an understatement. One area, however, about which I am very optimistic is the expected retooling of the National Labor Relations Board.

This week, the U.S. Chamber of Commerce’s Workforce Freedom Initiative published a comprehensive report outlining the areas of federal labor law that the NLRB must address to restore balance to the workplace.

What’s good for the goose … NLRB protects employee’s Facebook post critical of his union

It won’t take much searching through the archives to find posts discussing the NLRB’s protections for employees’ Facebook posts critical of their employers (here, for example). Protected speech under the NLRA, however, cuts both ways. Section 7 not only protects anti-employer comments, but also anti-union comments. Thus, it would make sense that the NLRB would conclude, as it recently did in International Union of North America, Local Union No. 91 [pdf], that section 7 protects an employee who posts on Facebook comments critical of his labor union.

"A Day Without Immigrants" protests followed by days without work for fired employees

Last Thursday, in protest against President Trump’s immigration policy, people nationwide participated in “A Day Without Immigrants.” As part of the protest, many businesses closed their doors to show what our nation would look like without immigrants. In addition, many immigrants simply did not go to work.
As a result, many now find themselves unemployed.

Unions membership is up in Ohio; is your business prepared?

Union membership numbers for 2016 are out, and while most employers should be encouraged, Ohio employers might think otherwise.

In Ohio, the percentage of workers belonging to unions is at 12.4 percent, up 0.1 percent from 2015. Nationally, union membership sits at 10.7 percent, down 0.4 percent from 2015. In other words, Ohio’s union representation is both greater than, and growing faster than, the national average.

SCOTUS to review NLRB ban on class-action waivers

One of the biggest issues on the NLRB’s hit list over the past few years has been class-action waivers. In D.R. Horton, a 3-2 majority of the Board held that an arbitration agreement which requires employees to waive their right to collectively pursue employment-related claims in all forums (i.e., by giving up their right to file or join class or collective actions) violates employees’ rights under the National Labor Relations Act to engage in protected concerted activity. This issue is significant, as employers seek to use class-action waivers to combat the plague of wage-and-hour lawsuits.

In the four years since D.R. Horton, the NLRB has invalided hundreds of class-action waivers. On appeal, however, not all federal circuit courts have been kind to D.R. Horton. The 5th Circuit overturned D.R. Horton itself, while other circuits have sided with the NLRB on this important issue.

Now, the Supreme Court is poised to have the final say.

“Who needs the NLRB?”

Bloomberg BNA reporters Chris Opfer and Ben Penn asked this question in their weekly column of workplace musings: “Who needs the NLRB?” (a question I’ve asked myself more than once over the past eight years.)

Said Chris Opfer:

Federal judge takes NLRB to task for rules that protect racist and sexist workplace misconduct

Of all of the decisions the NLRB has handed down in the past eight years, those that let striking employees lob racists and sexist bombs at replacement workers crossing picket lines are the most offensive to me.

Consolidated Communications v. NLRB (D.C. Cir. 9/13/16) is one such case.

More compelling than the decision, however, is the concurring opinion written by Judge Patricia Millett, in which she calls on the NLRB to carry out its mission to protect the rights of all employees, not just those who happen to be walking a picket line. How can a picket line magically convert misconduct that is “illegal in every other corner of the workplace” into the “unpleasantries that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity,” she asks? 

Feds publish a Halloween trick for employers

Have you seen Worker.gov? It is a how-to manual for employees to file charges with the full gauntlet of federal labor-and-employment agencies―EEOC, NLRB, OSHA, and DOL Wage-and-Hour Division.

NLRB takes one on the chin in appellate decision

I am no fan of the NLRB and its aggressive agenda over the past few years. And, it appears I don’t stand alone.

Check out these scathing words from the D.C. Circuit Court of Appeals in Heartland Plymouth Court MI v. NLRB [pdf], in which the appellate court ordered the NLRB to pay the employer’s $17,649 in legal fees for the Board’s bad faith litigation by continuing to pursue a case that the NLRB knew it could not win. Why? Because the NLRB’s position ran counter to the law of every single appellate court.

The NLRB is now basically creating unfair labor practices out of thin air

Image via forbes.com

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the Board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].

Did the NLRB do more harm than good by permitting teaching and research assistants to organize?

Last week, in Trustees of Columbia University [pdf], the National Labor Relations Board upended decades of precedent by holding that federal labor law covers graduate and undergraduate teaching assistants, and graduate research assistants. This case has received wide spread national coverage (such as here and here). It is academically and politically interesting, and worth your time to read even if your business doesn’t involve academia. Moreover, the Board’s willingness to so easily depart from such well established precedent should be troubling to all employers.

The aspect of the decision I want to focus on in Member Miscimarra’s dissent, specifically his argument that because of the NLRB’s recent super-expansion of the doctrine of protected concerted activity, this decision will harm the very students it intends to protect. 

DOL wage/hour agreement with Subway raises legitimate joint-employer concerns

The Department of Labor recently unveiled an agreement with Subway through which the fast-food giant has agreed to assist its franchisees in their wage-and-hour compliance.

According to the DOL

the agreement builds upon the division’s ongoing work to provide technical assistance and training to Subway’s franchisees. It also provides an avenue for information-sharing where we will provide data about our concluded investigations with Subway, and they will share their own data with us, generating creative problem solving and sparking new ideas to promote compliance. When circumstances warrant, the franchisor will remind franchisees of the Wage and Hour Division’s authority to investigate their establishments and to examine records. It also specifies that Subway may exercise its business judgment in dealing with a franchisee’s status within the brand, based upon any history of Fair Labor Standards Act violations.