NLRA

“Unpredictable and Potentially Messy”?: NLRB Ruling Could Complicate Employers’ Workplace Investigations

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In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) (“Piedmont Gardens”), the National Labor Relations Board (“NLRB” or “Board”) adopted a new standard for union access to employers’ witness statements in discipline cases.  In so doing, the NLRB overruled the 37-year-old standard articulated in Anheuser- Busch, 237 NLRB 982 (1978), that provided a blanket exemption for the disclosure of witness statements.  Instead of a blanket rule, the majority followed the  Supreme Court’s 1979 decision in Detroit Edison v. NLRB, 440 U.S. 301 (1979), which requires a case-by-case balancing of the union’s need for the witness statements against the employer’s “legitimate and substantial confidentiality interests.”

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Franchisors Beware: NLRB Seeking to Super-Size Joint Employer Liability

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The National Labor Relations Board’s (“NLRB”) General Counsel’s Office has again signaled its commitment to expanding the scope of the current test for joint employment. In a move that could have implications for a broad array of franchise relationships, on December 19, 2014, the General Counsel of the NLRB announced that it has issued complaints against both McDonald’s franchisees and McDonald’s USA, the franchisor, as a joint employer. The decision to name McDonald’s as a respondent is consistent with the General Counsel’s recent advocacy that the current joint employment standard is too narrow.

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NLRB Reverses Course on Employer Email, Creating Presumptive Right of Employees to Use Work Email Systems for Union Organizing

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Email

In a game-changing 3-2 decision on December 11, the National Labor Relations Board (NLRB or Board) overruled its 2007 Register Guard decision, which upheld the right of employers to limit employee access to company email systems, calling it “clearly incorrect” and holding that employees have a presumptive right to use their employers’ email systems for non-business purposes, like communications about union organizing, wages and working conditions, during “nonworking time.”  Register Guard, which has long been criticized by organized labor, held that an employer may completely prohibit employees from using an employer’s email system for Section 7 purposes, even if they are otherwise permitted access to the email system—without demonstrating any business justification—so long as the ban is not applied discriminatorily.

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Ending in a Draw: In Iskanian v. CLS Transportation, the California Supreme Court Upholds Class Action Waivers in Arbitration Agreements, But Also Makes PAGA Claims Unwaivable

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Ever since the U.S. Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, California employers hoped this day would come. In a predictable result, the California Supreme Court today acknowledged that class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA). In so doing, the Court overruled its 2007 decision in Gentry v. Superior Court which effectively had barred class action waivers for wage and hour cases. But the Court’s 6-1 plurality decision also bolstered an alternate method for bringing Labor Code claims in court by declaring that actions brought under the Private Attorneys General Act (Labor Code § 2968 et seq.) are not waivable by private agreement and thus not subject to compelled arbitration. READ MORE →

Compelling Individual Arbitration Violates National Labor Relations Act? It Does According to ALJ

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People at a Table

Joining the ever growing list of opinions on the arbitrability of class claims, an NLRB Administrative Law Judge recently ruled that an arbitration agreement that did not expressly bar workers from bringing class or collective actions still violated federal labor law because the employer’s steps taken to enforce the agreement in court had the practical effect of doing so. READ MORE →

Off the Playground, Out of the Locker Room, and into the Office: How to Combat Workplace Bullies

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People at a Table

The Miami Dolphins recently have come under intense scrutiny amid allegations that coaches encouraged defensive guard Richie Icognito to bully teammate Jonathan Martin in an effort to “toughen” him up. The alleged bullying was so severe, including threats of violence and racially derogatory statements, that Martin left the team, the NFL launched an investigation, and the Dolphins suspended Incognito indefinitely. While it may have taken this locker room scandal to bring bullying into the public eye, the legal and practical ramifications of workplace bullying are common, and employers can learn many lessons from this case. READ MORE →

Oh, F*©k No: Administrative Law Judge Rules that Employees’ Expletive-Laced Facebook Posts are not Protected Under the National Labor Relations Act

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With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. READ MORE →

Company E-mail Use Policies: The Next Battleground for the NLRB?

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Email

As reported in prior blogs, the National Labor Relations Board (NLRB) has become increasingly active in attacking employer policies on the grounds that those policies chill employees’ rights to engage in concerted activity. In particular, the NLRB has been scrutinizing social media policies. READ MORE →

Fifth Circuit to Consider In Re D.R. Horton in Light of Recent Court of Appeals Decision Striking Down Recess Appointments to NLRB

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Coins and Hourglass

A recent D.C. Circuit Court of Appeals decision striking down several recess appointments to the National Labor Relations Board has cast doubt over one of the NLRB’s most controversial decisions from 2012.

In Noel Canning v. NLRB, F. 3d (D.C. Cir. Jan. 25, 2013), the D.C. Circuit held that President Obama lacked constitutional authority to use recess appointments to name three new members to the NLRB because the vacancies did not arise, and the appointments were not made, during a “Recess of the Senate,” which is defined as “the period between sessions that would end with the ensuing session of the Senate.” Slip op. at 18; 39-40. As a result, the court held that the NLRB lacked a quorum when it decided the underlying case, rendering its decision void ab initio.

The holding in Noel Canning raises questions about the viability of In re D.R. Horton, Inc., 357 NLRB 184 – 2012, one of the most widely discussed NLRB decisions of 2012. In D.R. Horton, the Board held that arbitration clauses that prohibit employees from pursuing class or collective actions violate employee rights under Section 7 of the National Labor Relations Act (“NLRA”) to engage in protected concerted activity. D.R. Horton’s appeal will be heard by the Fifth Circuit on February 4.

D.R. Horton was decided the day before President Obama made the recess appointments at issue in Noel Canning. However, Craig Becker, one of the three NLRB members who decided D.R. Horton, was the subject of an earlier recess appointment in 2010. D.R. Horton filed a letter with the Fifth Circuit on January 29, 2013, arguing that the holding in Noel Canning should be applied to Becker’s appointment and render the decision void. The Fifth Circuit is expected to address this issue together with D.R. Horton’s existing arguments during oral argument on February 4.

California Court of Appeal Denies Wage-and-Hour Class Claims and Enforces Arbitration Agreement under Concepcion

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Gavel and Hundred-Dollar Bill

Employers in California have been watching closely to see how courts will apply the United States Supreme Court’s decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), which held that the Federal Arbitration Act (FAA) preempted state law concerning the enforceability of class action waiver provisions, in which a party waives his or her right to arbitrate claims on a class basis. READ MORE →