On December 19, 2014, the National Labor Relations Board published a public notice stating that the NLRB General Counsel has issued 13 unfair labor practice complaints against McDonald’s USA, LLC, and McDonald’s franchisees alleging that McDonald’s and the franchisees are joint-employers, and as such, are jointly responsible for alleged violations of the National Labor Relations Act. What’s at stake in these cases is not only shared responsibility for these alleged violations of the Act, but possibly also shared responsibility in collective bargaining should those ...
In our new Act Now Advisory, “NLRB Adopts Expedited Election Rules, Effective April 15, 2015,” we report on the National Labor Relations Board’s new rules for representation elections. These rules will substantially shorten the time between the point when a union files a petition for a vote and the timing of the vote, severely limit the right of employers to litigate important issues before an election is held, and are expected to result in more union wins in representation votes. We include steps that employers may want to consider taking in advance of April 2015, in order to ...
Updated, 12/12/14 — In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work. While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer. This decision applies to all employers, not only those that have union-represented employees ...
Regarding the Supreme Court’s Integrity Staffing Solutions v. Busk opinion, issued yesterday, our colleague Michael Kun at Epstein Becker Green has posted “Supreme Court Holds That Time Spent in Security Screening Is Not Compensable Time” on one of our sister blogs, Wage & Hour Defense.
Following is an excerpt:
In order to prevent employee theft, some employers require their employees to undergo security screenings before leaving the employers’ facilities. That is particularly so with employers involved in manufacturing and retail sales, who must be concerned with ...
Our colleague Stuart Gerson of Epstein Becker Green posted “DC Circuit Stays Halbig Action Pending SCOTUS Review of King, Upholds Accommodation for Contraceptive Coverage” on the Health Law Advisor blog. Following is the full text:
Only last week, we informed you of the Supreme Court’s somewhat surprising grant of cert. in the Fourth Circuit case of King v. Burwell, in which the court of appeals had upheld the government’s view that the Affordable Care Act makes federal premium tax credits available to taxpayers in all states, even where the federal government, not the ...
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Please join us for a complimentary webinar addressing the professional and business challenges encountered by health care providers dealing with Ebola and other infectious diseases. This webinar will offer a clinical overview as well as a review of the guidelines which offer protocols for addressing concerns over Ebola and similar diseases, the health regulatory and risk management issues providers might consider in developing a response strategy, and the resulting labor and ...
While by most accounts the current term of the Supreme Court is generally uninteresting, lacking anything that the popular media deem to be a blockbuster (the media’s choice being same-sex marriage or Affordable Care Act cases), the docket is heavily weighted towards labor and employment cases that potentially affect employers in all industries including retail, health care, financial services, hospitality, and manufacturing. In chronological order of argument they are as follows.
The Court already has heard argument in Integrity Staffing Solutions ...
On October 28 a three-member majority of the National Labor Relations Board in Murphy Oil U.S.A., Inc. revisited and reaffirmed its position that employers violate the National Labor Relations Act (the “Act”) by requiring employees covered by the Act (virtually all nonsupervisory and non-managerial employees of most private sector employees, whether unionized or not) to waive, as a condition of their employment, participation in class or collective actions.
As previously reported in an Act Now Advisory, in 2012 the NLRB held in D.R. Horton that the home ...
For retail and hospitality industries especially, it is turning out to be a long, hot summer as franchises continue to be in the employment law spotlight.
On July 29, 2014 the NLRB’s General Counsel announced a decision to treat McDonald’s, USA, LLC as a joint employer, along with its franchisees, of workers 43 McDonald’s franchised restaurants with regard to unfair labor practices charges filed by unions on behalf of the workers and authorized charges against of both the franchisees and McDonalds. (See our July 30 blog post and Aug. 14 blog ...
We have written about it before but a recent NLRB decision is yet another example of the NLRB’s expanding and expansive view of what constitutes protected, concerted activities, and is therefore protected under the National Labor Relations Act. In Fresh & Easy Neighborhood Mkt, the NLRB (Chairman Pearce and Members Hirozawa and Schiffer) found that an employee engaged in protected, concerted activity when the employee spoke to co-workers about a single act of sexual harassment that was “seemingly directed at [the employee ...
By Peter M. Panken, Steven M. Swirsky, and Adam C. Abrahms
In May, we cautioned employers that the NLRB would be increasing its aggressive pursuit of injunctions under Section 10(j) of the Act to pressure employers in a range of unfair labor practice cases. The Board’s aggression and apparent overreach is clearly revealed in one recent case in which the Board petitioned for and was granted an injunction to end a lockout, only to have the underlying unfair labor practice allegation dismissed eight days later when the Administrative Law Judge who heard the case found that the ...
Following the NLRB’s announcement on July 29th of its position that McDonald’s and its franchisees are joint employers, commentators across the spectrum have been opining about this actually means for employers, unions and workers.
This week the AFL-CIO weighed in with its opinions in a post on its blog AFL-CIO NOW. After recounting the background of the developments, in section called “What’s the Big Picture?” the author points out how organized labor intends to take advantage of the Board’s anticipated broadening of the standards for finding joint employer ...
The NLRB’s General Counsel’s Office, in an Advice Memo dated October 25, 2013 (pdf) and released to the public on August 7, 2014, has taken the position that “an enterprise that grows, processes, and retails medical marijuana” is an employer subject to the National Labor Relations Act provided it meets the Board’s monetary jurisdictional standards and is an employer engaged in commerce and that “the Board should assert jurisdiction over this type of business enterprise.”
Notably, the General Counsel’s office advocates the position that even though all of ...
The National Labor Relations Board has been busy since the Supreme Court’s June 26th Noel Canning decision trying to address the issues and uncertainty resulting from the Court’s holding that recess appointments of Board members on January 4, 2012, were invalid because the Senate was not actually in recess. As we pointed out in our earlier post, this meant that numerous Board decisions from January 4, 2012 until August 5, 2013, because the Board lacked a quorum at the time that the cases were decided and many administrative actions, including appointments of Regional Directors ...
NLRB General Counsel Richard Griffin announced on Tuesday July 29th that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of 181 charges pending against McDonald’s, USA, LLC and various of its franchisees, in which the Board will allege that the company and its franchisees are joint-employers. If the General Counsel prevails on his theory that McDonalds is a joint employer with its franchisees, the result would be not only a finding of shared responsibility for unfair labor practices, but could also mean that the franchisor would share in the ...
The NLRB finds that the women’s shoe sales employees at Bergdorf Goodman’s New York Store are not an appropriate unit for bargaining. The Board’s unanimous decision to reverse the Regional Director’s finding that the shoe sales team did constitute an appropriate unit and could have their own vote on union representation comes one week after its decision finding that a unit limited to the cosmetics and fragrance sales employees at a Macy’s in Saugus were an appropriate unit for bargaining. The Regional Directors who issued the Decisions and Directions of Election in ...
The New York Times reported today in its business section in article by Steven Greenhouse, who covers labor matters for the paper, about a convention taking place in Addison. The convention is underwritten by the Service Employees International Union or SEIU, which has been not very quietly backing the “Stand for Fifteen,” movement in its quest for wages of $15 per hour in the fast food field. It is probably not a coincidence that Addison is just four miles from McDonald’s headquarters in Oak Brook, Il.
While most of last week’s focus in labor relations law was on the NLRB’s ...
By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
In case you were hoping that the Supreme Court’s recent decision in Noel Canning would finally put to bed any questions regarding President Obama’s recess appointments to the NLRB, or that the Fifth Circuit’s rejection of the Board’s decision in D.R. Horton might alter the NLRB’s position on the right of employers to require employees to abide by mandatory arbitration agreements , think again.
In Fuji Food Products a decision issued on July 15, 2014, NLRB Administrative Law Judge Jeffrey D. Wedekind held ...
On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.
Following is an excerpt from the blog post:
On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all ...
Our colleague Stuart Gerson of Epstein Becker Green has a new post on the Supreme Court’s recent decisions: “Divided Supreme Court Issues Decisions on Harris and Hobby Lobby.”
Following is an excerpt:
As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either ...
By: Adam C. Abrahms, Kara M. Maciel, Steven M. Swirsky, and Mark M. Trapp
The U.S. Supreme Court today held that the US Senate was not in recess on January 4, 2012, when President Obama made three “recess” appointments to the National Labor Relations Board under the Constitution’s Recess Appointment Clause. In simple terms that means that the recess appointments were not proper and s decisions in which the recess appointees participated were not valid.
What this now means is that hundreds of cases decided by the NLRB following the January 4, 2012 recess appointments to the ...
Our colleague Allen B. Roberts recently wrote a client advisory entitled “Unions Swim Against the Tide as Pension Issues Surface for Negotiations and Organizing,” which appears on Epstein Becker Green's website.
Following is an excerpt:
Contributions to multiemployer defined benefit pension plans have been a mainstay, legacy feature of union negotiations in many industries. But the fabric of such staples may be tearing apart as employers contemplate the potential of escalating contributions to amortize unfunded liabilities that increase costs but may have ...
By Steven M. Swirsky and Peter M. Panken
NLRB General Counsel Richard Griffin has declared in an April 30, 2014 General Counsel Memorandum. that his office will continue and expand the increasingly aggressive pursuit of injunctions in Federal Court against employers in connection with union organizing and bargaining for initial collective bargaining agreements.
In GC Memorandum GC 14-30, the Board’s regional offices have been directed that they should aggressively consider requesting authorization from the General Counsel and the Board to pursue Section 10(j) injunctions ...
By Kara M. Maciel and Lindsay A. Smith
On April 30, 2014, the National Labor Relations Board (the “Board”) invited interested parties to submit amicus briefs addressing an employee’s right to use an employer’s electronic communications system for Section 7 activity in the case of Purple Communications Inc. Based on a prior Board decision in Guard Publishing Co. d/b/a Register Guard (2007), employers are not currently required to allow employee use of their e-mail systems for protected, concerted activities because in that case the Board held, “employees have no ...
An NLRB Administrative Law Judge issued a Decision on April 29th in which he found that when a waiter in a restaurant in New York City, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, he was engaging in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing. While the decision does not mention whether the waiter was represented by a union, it seems pretty clear that there was no union in this case.
Thus, the Judge concluded, when the restaurant terminated the waiter, it did so ...
As we reported on April 14, in “NLRB Receives Spirited Debate Over Ambush Election Rules During Public Meeting,” our colleague Kara M. Maciel spoke on behalf of the National Grocers Association, on three separate panels.
See below for the videos, or visit the NLRB channel on Youtube.
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If you have questions, please reach out to the author(s).
The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were ...
Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
The panels will address the following topics:
- Panel B.2: Requirement for written statement of position
Address issues related to the proposed requirement for a written statement of position. - Panel E.1 & E.3: Election date
Please describe the standard to be applied for ...
By Steven M. Swirsky and Adam C. Abrahms
The Regional Director for the NLRB’s Chicago Region has found that football players at Northwestern University who receive scholarships are “employees” for purposes of the National Labor Relations Act. Some of the football players blindsided the University, NCAA and college athletics by filing a petition to be represented by the College Athlete Players Association (CAPA), a putative union funded and supported by the United Steelworkers union. As only "employees" are covered by the National Labor Relations Act, finding them to be ...
By Kara M. Maciel and Lindsay A. Smith
On March 12, 2014, the National Labor Relations Board (“the Board”) concluded that a beef processing company committed an unfair labor practice in violation of the National Labor Relations Act (“NLRA”) when it terminated three workers for striking in protest of their working conditions (“Greater Omaha Packing Co.”). More significant, however, was the Board’s decision to reverse an Administrative Law Judge’s finding concerning the employer’s questioning of an employee. Prior to the strike, one of the terminated ...
Today, EBG client, National Grocers Association (“NGA”), filed a request to speak at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
NGA is the national trade association representing retail and wholesale grocers that comprise the independent sector of the food distribution industry. NGA requested to speak on 4 key issues being contemplated by the NLRB:
- Timing of the Election. NGA opposes any ...
As we noted in "First Kill All The Lawyers", last November the DOL announced its intention to move forward this month with the Administration's Proposed Rule change which would eviscerate the Advice Exemption to the Persuader Rule . Yesterday, the DOL again delayed its timeline for finalizing the Rule.
In November the DOL's announcement asserted that it intended to publish a Final Rule in March. On March 6, according to Bloomberg BNA, a DOL spokesman asserted that the Proposed Rule would NOT be made final this month. The DOL did not give a new target date for finalizing the Rule ...
As we have discussed on a number of prior occasions (Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers; Obama’s Labor Agenda Continues to Advance – Griffin Confirmed as NLRB GC; NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act. and Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense) the National Labor Relations Board (“NLRB” ) and its Administrative Law Judges continue to find that ...
Our colleague Mark M. Trapp recently wrote an article entitled "Going Through Withdrawal: A Step-By-Step Guide to Arbitration in Multiemployer Withdrawal Liability Disputes" which appears in the current issue of the ABA Journal of Labor & Employment Law (members only).
Following is an excerpt:
Many employers with a unionized workforce contribute to multiemployer pension funds established by collective bargaining agreements. In recent years, due to a variety of factors, most multiemployer funds have faced significant underfunding. As employers have exited these funds ...
By Lisa M. Watanabe
On December 3, 2013, the Fifth Circuit issued its much anticipated decision overturning the National Labor Relations Board’s (“NLRB”) controversial D.R. Horton, Inc. decision invalidating class action waivers and holding that requiring employees to sign such waivers violated employees’ rights under the National Labor Relations Act (the “Act”). As previously reported in our earlier Act Now Advisory, the NLRB’s January 3, 2012 decision held that home builder D.R. Horton, Inc. (“D.R. Horton”) unlawfully interfered with employees’ ...
While most Americans were preparing for their Thanksgiving Feast, President Obama showed his thanks last week to Big Labor and its hundreds of millions in campaign contributions by ignominiously allowing his recently confirmed Labor Secretary to move forward his DOL's long pending radical proposal to dramatically change the decades old "Persuader Regulations". The Proposed Rule is designed to give unions both an organizing and bargaining advantage by significantly restricting the right and ability of employers to obtain legal counsel and lawfully communicate with employees ...
Yesterday, in his first public address since being confirmed by the Senate, NLRB Board Member Kent Y. Hirozawa shared with the attendees of EBG's 32nd Annual Client Labor and Employment Briefing his views on the current Board and what to expect from it.
His address, coming the day before Halloween, had all the "BEWARE" foreshadowing of a good ghost story; unfortunately for employers, the potential horrors may not be tricks or treats.
Board Poised For an Active and Productive 2014
As we noted here, when Hirozawa was confirmed as part of a package deal in July the Board had its first full ...
Earlier this week the Senate confirmed Richard Griffin as NLRB General Counsel. As we have noted previously in greater detail, Griffin’s appointment was controversial, having been unconstitutionally appointed as a Board Member and, to the ire of Republicans, seemingly thumbed his nose and multiple Courts of Appeals which ruled he and the other recess appointments did not have the authority to act.
In an anti-climactic end to several years of NLRB appointment Senate wrangling, Griffin was confirmed Tuesday in a party line vote. He now becomes the first confirmed ...
The NLRB has issued an announcement, explaining how it will recalculate deadlines for filings and submissions in light of the federal government’s 16 day shutdown earlier this month. As we reported at the time of the shutdown the NLRB sua sponte granted parties a one day extension for each day that the Board was closed.
In its announcement dated October 17, 2013, the Board explained that the extensions will apply for all pending matters and not just those due dates that fell during the shutdown period. There is a one day extension for “each day on which the Agency’s offices are ...
The NLRB has advised its employees in a message posted on the Employee Information section of its website that the Agency has initiated a process to resume full operations. As such, all employees should make every effort to return to work on Thursday, October 17, 2013. This reflects the fact that, as the Board has informed its employees who may not have been following developments in Washington too closely, that “late last night President Obama signed legislation to extend the nation's debt limit and end the partial shutdown of the federal government.”
As we ...
by: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
On Monday October 1, 2013, the Board published a Notice in the Federal Register to the NLRB’s website that supplements the effects of the Contingency Plan that we examined at outset of the government shutdown and NLRB furlough. Significantly, the Notice answers some of the important practical questions confronting employers, unions and employees with business before the Board.
With respect to time limits for filings with the agency, according to the Notice, the Board has unilaterally granted an extension of the ...
By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
The shutdown of the federal government that took effect at 12:01 a.m. Tuesday October 1st has shut down all non-essential operations of the US government, including those of the National Labor Relations Board (Board or NLRB).
The Board’s Contingency Plan for Shutdown in the Absence of Appropriations (“Contingency Plan”) is now in effect, effective today. It details how the shutdown will impact the NLRB’s operations and what the shutdown means for employers, employees and unions with unfair labor practice ...
by: Adam C. Abrahms, Kara M. Maciel, Adam C. Solander, and Steven M. Swirsky
On September 13, 2013, the Obama Administration rejected the union movement’s intense lobbying efforts to seek a waiver, so that their members would be able to receive tax subsidies in the Affordable Care Act (“ACA”) Marketplaces for those of their members who will be offered “affordable coverage” from their employers.
Beginning January 1, 2015, the ACA requires that large employers offer affordable health coverage that provides minimum value to their “full-time employees” (those working ...
By Adam C. Abrahms, Steven M. Swirsky, and D. Martin Stanberry
On Tuesday, August 20th, in an opinion that follows in the wake of Noel Canning, United States District Judge Benjamin H. Settle dismissed an injunction petition filed by Ronald Hooks, a Regional Director of the National Labor Relations Board, on the grounds that he was “without power” to issue the underlying unfair labor practice complaint.
The Regional Director had initially filed the petition with the District Court in June in an effort to obtain a temporary injunction that would, among other things, have ...
On August 1st President Obama made a bold statement by appointing Richard Griffin to serve as the NLRB's General Counsel only three days after the former union lawyer vacated his unconstitutional recess appointment as a NLRB Board Member. The President statement by appointment made at least two things clear -
- The President wants an aggressive pro-labor General Counsel and NLRB, and
- The President values advancing the labor agenda over cooperation with the US Senate.
As we discussed here on July 30th the Senate confirmed a full Board for the first time in a decade as a result of a "deal" in ...
By: Adam C. Abrahms and Stephanie R. Carrington
Since California’s implementation of legislation setting minimum nurse-to-patient staffing ratios in 2004, the issue of nurse staffing has been slowly but surely creeping its way into other states’ legislation, attempts at federal legislation, and of course, into more union contracts.
When it comes to requirements for hospital staffing ratios, federal regulations provide only that hospitals participating in Medicare have “adequate numbers” of nurses and other personnel to provide nursing care. But some states have ...
A recent article in Bloomberg BNA's Health Insurance Report will be of interest: "ACA's Employer 'Pay or Play' Mandate Delayed - What Now for Employers?" by Frank C. Morris, Jr., and Adam C. Solander, colleagues of ours, based in Epstein Becker Green's Washington, DC, office.
Following is an excerpt:
The past few weeks have changed the way that most employers will prepare for the employer ‘‘shared responsibility'' provisions of the Affordable Care Act (ACA). Over the past year or so, employers have scrambled to understand their obligations with respect to the shared ...
On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board. The Senate also confirmed current NLRB Chairman Mark Gaston Pearce (D).
The confirmations are of course the result of the Senate Republicans backing down in the face of the threat by Senate Democrats to change Senate rules so that they could force a vote, up or down, on President Obama's nominations for the Board and ...
By Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
With an eye toward next term, the Supreme Court announced on Monday, June 24th, that it had granted the National Labor Relations Board's (“NLRB”) petition for certiorari in Noel Canning v. NLRB. This news all but ensures that America’s highest court will determine not only the fate of President Obama's recess appointments to the Board, but also the extent of a president's Constitutional power to appoint individuals to various federal agencies, departments and courts without the advice and consent of the Senate.
Our colleague, Barry A. Guryan at Epstein Becker Green recently posted “Eleventh Circuit Overturns NLRB'S Petition to Seek Injunctive Relief Against Mardi Gras Casino” on the Hosptitality Labor and Employment Law Blog, and we think you’ll be interested.
Following is an excerpt:
In a case recently decided by the U.S. Court of Appeals for the Eleventh Circuit (National Labor Relations Board v. Harman and Tyner Inc., d.b.a. Mardi Gras Casino, Hollywood Concessions, Inc., 2013 U.S. App. LEXIS 7555), the Court affirmed a District Court’s decision to reject the National Labor ...
Wal-Mart Stores has filed an interesting and unusual lawsuit in Los Angeles Superior Court seeking injunctive relief to stop various activities conducted by the United Food and Commercial Workers Union and its subsidiary “OUR Wal-Mart” (Organization United for Respect at Wal-Mart) in connection with their long-running efforts to organize the giant retailer’s employees. The complaint alleges that on numerous occasions in 2012 and 2013 demonstrators acting on behalf of the UFCW entered various Wal-Mart stores in California and disrupted store ...
By: Evan Rosen and Adam C. Abrahms
Yesterday, in a 2-1 decision, the Third Circuit Court of Appeals became the second appellate court to issue a ruling that President Obama’s recess appointments to the National Labor Relations Board (the “Board”) were constitutionally invalid because they did not occur during an “intersession recess” of the United States Senate. The case comes a few months after the D.C Circuit’s ruling in Noel Canning, which similarly held that the recess appointments were invalid. The Third Circuit and D.C. Circuit decisions, taken together, call ...
By Adam C. Abrahms and Steven M. Swirsky
In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly ...
Evan Rosen and Mark M. Trapp of the Labor and Employment practice co-wrote an article titled “What To Know About ACA Collective Bargaining”
Following is an excerpt:
For the unionized employer, the advent of the Affordable Care Act requires careful strategic thought about its impact on upcoming collective bargaining negotiations. Indeed, for companies with a unionized workforce, the ACA poses additional challenges and strategic considerations above and beyond those confronting nonunionized workforces.
Click here to read the full article.
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If you have questions, please reach out to the author(s).
The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
In the past week media reports abound regarding a controversial allegedly "anti-union" statement made by a high level executive associated with the iconic snack cake Twinkies. As widely reported late last year, the original Twinkie maker, Hostess Brands, Inc., was forced to close, liquidate and lay off its entire unionized workforce, publicly blaming the recalcitrance of its unions for the company's downfall. However, these statements did not cause this most recent controversy. Rather, it was comments from an executive connected with Hostess Brands LLC, the newly formed ...
by: Steven M. Swirsky and D. Martin Stanberry
An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.
The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that ...
By: Jill Barbarino and Steven M. Swirsky
In a recent decision involving social media posts by non-union employees, as well as employer rules prohibiting the sharing of information about compensation among co-workers and with non-employees, the NLRB affirmed the findings and proposed remedy recommended by a Board Administrative Law Judge, holding that the Facebook posts of three employees of an upscale clothing boutique in San Francisco constituted protected activity under Section 7 of the National Labor Relations Act and the termination of the employees’ for the posts was an ...
By Steven M. Swirsky and D. Martin Stanberry
Will Congress shut down the National Labor Relations Board? In a narrow, 219 – 209 vote this past Friday, the United States House of Representatives passed a bill that would strip the National Labor Relations Board (“Board”) of the authority to take any substantive action until the Supreme Court decides Noel Canning v. NLRB, 2013 WL 276024, (D.C. Cir. 2013) or the Senate confirms a quorum of members to the Board (as constituted, the Senate would have to confirm at least 2 new members to establish a quorum). As we reported, in Noel Caning
by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky
President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members.
These new nominations – who must be ...
by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry
The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.
While the NLRB had held that the workers actions were ...
Illinois charter schools may be subject to a union organizing drive under federal law pursuant to a recent ruling by the National Labor Relations Board. On December 14, 2012 The National Labor Relations Board (“NLRB”) found that a private, nonprofit corporation that operates a public charter school in Chicago was an employer under Section 2(2) of the National Labor Relations Act (NLRA). Chicago Mathematics & Science Academy Charter School, Inc. and Chicago Alliance of Charter Teachers and Staff, IFT-AFT (359 NLRB 41. This ruling emanated from the ...
By: Allen B. Roberts
I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact employers in 2013 and beyond. One topic involved the potential for labor organizing by pop-up unions in break-out units.
Despite some perceptions of cohesiveness and political acumen, influence and wherewithal following the 2012 election cycle, labor unions represent only about 7.3 percent of the private sector workforce in the United ...
In a year marked by backlash against organized labor in traditional union strong holds such as Wisconsin, Ohio and Michigan, the Bureau of Labor Statistics has reported that union membership reached historic lows in 2012 as the result of that backlash along with other factors dwindled union ranks.
Organized labor lost 398,000 members in 2012 as the percentage of private sector union membership fell to an all time low of 6.6%. When both public and private sector employees are included the rate of union membership is almost doubled to 11.3% though that rate still represents a significant ...
Epstein Becker Green is pleased to announce a webinar series for health care employers focusing on new and more aggressive tactics and strategies being employed by health care industry unions.
This three-part webinar series will provide an in-depth analysis and offer tools to assist employers who currently have union represented workforces as well as those who are or may be facing organizing efforts.
Part I - January 29, 2013 Aggressive Union Organizing Strategies: When Organizing Trumps Patient Care
Part II - February 28, 2013 Aggressive Union Negotiating Tactics
Part III - March ...
by: Adam C. Abrahms, Kara M. Maciel, Evan J. Spelfogel and Steven M. Swirsky
In a time when employers do not receive much good news out of Washington D.C., the U.S. Court of Appeals for the D.C. Circuit may have given some very welcome relief to employers facing issues before the National Labor Relations Board (“NLRB” or “the Board”) in light of recent precedent reversing NLRB decisions. Quoting from early Constitutional authority including The Federalist Papers and Marbury v. Madison, the D.C. Circuit ruled today that President Obama’s “Recess Appointments” of ...
I co-authored an Act Now Advisory on the decision issued by NLRB Administrative Law Judge (ALJ) Joel Biblowitz on January 8, 2013, finding that Quicken Loans’ agreements concerning proprietary and confidential information and non-disparagement unlawfully interfered with these unrepresented employees’ Section 7 rights to engage in concerted and protected activity. The ALJ decision adopts the expansive views of Acting General Counsel Lafe Solomon and further expands the Board’s involvement in non-union workplaces.
On January 3, 2013, the California Nurses Association/National Nurses United (CNA/NNU) and the National Union of Healthcare Workers (NUHW), two of the healthcare industry's most aggressive unions, announced a new alliance designed to organize employees in non-union hospitals, impose their agenda on already unionized hospitals and target the members of rival union Service Employees International Union (SEIU).
CNA/NNU is the largest union exclusively representing registered nurses (RNs). The CNA has had considerable success in California organizing over 85,000 RNs and ...
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on employers and their group health plans.
In less than a year, employers employing at least 50 full-time employees will be subject to the Employer Shared Responsibility provisions. Under these provisions, if employers do not offer health coverage or do not offer affordable health coverage that provides a minimum level of value to their full-time employees, they may be subject to a tax penalty under the proposed ...
On Tuesday, December 18, Epstein Becker Green attorneys Gretchen Harders, Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “What Employers Need to Know Now!” as the second webinar in a series on the New ACA Implementation Regulations: Employer Impact.
The webinar included:
- ACA implementation timeline
- Structure of the law and basic concepts affecting employers
- Critical employer decision making and planning for 2014
- Alternative plan design options available to employers
The webinar recording and presentation slides for “What Employers Need to ...
Frank C. Morris, Jr., Member of the Firm in the Litigation, Labor and Employment, and Employee Benefits practices is speaking at the 36th Annual National Labor & Management Conference on the topic of the Affordable Care Act and associated compliance issues facing employers and health and welfare funds.
The National Labor and Management Conference is recognized as one of the most outstanding labor and management programs in the United States, promoting discussion and collaboration on many levels. The program annually unites a diversity of labor and management leaders from across ...
Please join Epstein Becker Green’s Health Care & Life Sciences, Employee Benefits, and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on employers and their group health plans and programs.
Since the Presidential election, The U.S. Department of Health and Human Services is moving quickly to implement the Affordable Care Act. Rules have been released in the past few weeks concerning participation in federal exchanges, discrimination based on pre-existing conditions, essential health benefit requirements, and ...
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners in a webinar series for employers. Registration is complimentary.
On Friday, November 30, Epstein Becker Green attorneys Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “The New Wellness Program Regulations, Part of a Webinar Series on the New ACA Implementation Regulations: Employer Impact.”
The webinar discussed:
- Proposed regulations and the impact these regulations could have on your overall wellness strategy
- Areas where employer ...
A number of cases challenging President Obama’s recess appointments of three of the five members of the National Labor Relations Board (NLRB) on January 4, 2012, are currently working their way through the federal court system. Perhaps the most significant is set to be argued before the DC Circuit tomorrow. Additionally, this past Friday the U.S. Court of Appeals for the Seventh Circuit (through a panel consisting of Judges William J. Bauer, Ilana Diamond Rovner and Ann Claire Williams) heard oral argument from the parties in another NLRB recess appointment case.
Our colleagues Maxine Neuhauser and Amy E. Hatcher have written a client advisory: "Employer Posting Requirements Under New Jersey Law."
Following is an excerpt:
The list of employee notices that New Jersey employers are required to post has grown this year. Accordingly, as 2012 comes to a close, New Jersey employers should take some time to review the notification requirements relating to employees' workplace rights and responsibilities under state law.
Employers are mandated under New Jersey law to display official posters informing their employees of the law relating to ...
On Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board. The webinar was moderated by Terence H. McGuire of the Practical Law Company. We discussed:
- Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
- Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
- The NLRB’s stance on what is and is not a lawful at will disclaimer.
- Social Media ...
By: Steven M. Swirsky and Paul H. Burmeister
In yet another foray into non-union workplace issues, on October 31, 2012, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued a pair of Advice Memoranda regarding similar issues with respect to ‘employment at-will’ policies contained in employee handbooks. (Rocha Transportation, 32-CA-086799 PDF and SWH Corporation d/b/a Mimi’s Café, 28-CA-084365 PDF). At issue in each case was at-will disclaimer language in an employee handbook which prohibits the employer’s representatives ...
I wrote the October 2012 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green.
In it, I outline five actions that non-union employers should take to retain their union-free status in 2013:
- Assess your company's vulnerability.
- Ensure that company policies are compliant and pro-company.
- Analyze and arrange your company's workforce to avoid micro-units.
- Be prepared to respond at the earliest signs of union organizing.
- Watch for NLRB developments directed at non-union employers.
The following is an excerpt:
With the ...
In one of the first rulings by the NLRB in a case involving social media, the Board agreed with the order of the ALJ that the firing of an employee for certain Facebook posts were not protected, concerted activity under the NLRA and the termination did not violate Section 7 of the Act. Karl Knauz Motors, Inc. (PDF)
The employee was a salesman who worked for a BMW dealership in Lake Bluff, Illinois. He posted several pictures and comments on his Facebook page about two recent events concerning his employer. First, the employee complained about the refreshments ...
The National Labor Relations Board (“NLRB”) has ruled that negotiations between the Hotel Bel-Air and UNITE HERE Local 11 were not at impasse when the employer implemented its last, best final offer, which included severance payments to union employees. Hotel Bel-Air, 358 NLRB 152 (September 27, 2012). The NLRB upheld the ALJ’s order for the employer to bargain with the Union and to rescind all the signed severance agreements containing a waiver of future employment with the Hotel Bel-Air.
The Hotel Bel-Air is a luxury hotel located in Los Angeles. The Hotel ...
Seemingly ignoring the requirements for employers to keep a harassment free workplace and disregarding their right to keep a respectful and orderly environment, last week in Fresenius USA Manufacturing, Inc. the NLRB found that the company committed an unfair labor practice by terminating an employee who admitted to using vulgar and threatening language.
Overturning an administrative law judge’s decision, the NLRB ordered Fresenius to reinstate the pro-union employee who referred to the employees leading a union decertification effort as “Pussies” and ...
It seems with each passing month the National Labor Relations Board or its Acting General Counsel opens yet another new front on its assault on non-union employers. A trend has emerged which puts labor law in conflict with standard employment practices. From hire, to control of the workplace and employer property, to the manner post-termination disputes are handled, the NLRB is directing employers to ignore conventional wisdom, and often times other legal mandates, to alter the way they deal with their employees.
Much attention has been given to the NLRB’s more direct pro-union ...
Over the past year the NLRB has issued a series of decisions which, taken together, mark a dramatic shift in the property rights of employers and expand the right of employees seeking to use their employer’s property to organize.
Two decades ago, in Lechmere, Inc. v. NLRB, the U.S. Supreme Court ruled that employers had a right to limit or deny non-employee union organizers access to their property provided the denial was nondiscriminatory and consistent with state law. For almost four decades, following its decision in Tri-County Medical Center, Inc., the NLRB has maintained that ...
It is Employment Law 101 – employment in the United States is generally at-will. Equally elementary to HR professionals and employment counsel is the use of a good, strong at-will policy and/or agreement. So common is the use of at-will policies and agreements that you would be hard pressed to find an employment handbook or an employer that does not make some use of them.
Notwithstanding this universal use, the National Labor Relations Board is poised to target non-union employers which maintain at-will policies or agreements. Although the NLRB has taken several steps to ease the ...
Recent Updates
- New Massachusetts Employer Notice Obligation
- Watch: Change Is Coming from the EEOC—but When? - Employment Law This Week
- The EEOC Moves to End EEO Reporting – Comments Invited Through August 24
- Watch: New York Employers Face New Restrictions on Severance, Tuition Repayment, and Sick Time - Employment Law This Week
- Attention Connecticut Warehouse Employers: Deadline for New Quota Notices Approaching