The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter. Just last week, a New York State appellate court in Gold v. New York Life Ins. Co., 2017 NY Slip Op 05695 (App. Div. 1st Dep’t, July 18, 2017), found itself aligned with those federal circuit courts of appeal invalidating these waivers. Given the continuing disagreement among courts across the nation – both federal and state – as to whether the Federal Arbitration Act’s policy favoring arbitration should trump the National Labor Relations Act’s prohibition on contracts that restrict the rights of employees to engage in collective action, the need for clarity from the Supreme Court is more urgent than ever. Employment Matters will of course continue monitoring these important developments, so please check back in for regular updates.
The Second Circuit said last week that an employer violated the National Labor Relations Act when it fired an employee who criticized a supervisor on Facebook during an election. The catch here is that the Second Circuit reached this conclusion even though the employee used profanity and hurled personal insults at the supervisor as part of his criticism. As we discussed in a post at the time of the NLRB’s initial determination, while the employee’s conduct pushed the boundaries of protected concerted activity under the NLRA, the fact that the post contained an express pro-union message and occurred in the heat of a campaign contributed to the finding that the termination was unlawful.
This past week, the D.C. Circuit Court of Appeals issued an important decision addressing two on-the-bubble workplace confidentiality policies – one which made the cut, while the other one made its way over to the legal equivalent of the NIT. The decision explored the boundaries of workplace directives related to the discussion of salary and employee discipline information and non-disclosure in investigations.
As of this writing, it has been over 850 days since the UConn women’s basketball team has lost a game. When the Huskies last tasted defeat (in an overtime thriller to Stanford on November 17, 2014), football players at Northwestern University were pursuing their rights to collectively bargain after a ruling by the NLRB regional director in Chicago held they were statutory employees. While the undefeated nature of women’s basketball in Storrs, CT has been a constant, the NLRB changed the game for Northwestern football players by declining to assert jurisdiction. However, there remains a feeling in certain quarters of college sports that some form of pay to student-athletes is inevitable.
With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer. This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.
The U.S. Equal Employment Opportunity Commission (EEOC) recently entered the Browning-Ferris saga, filing an amicus brief in support of the new joint employer test articulated by the National Labor Relations Board (NLRB) in August 2015. Drawing comparisons to its own joint employer test, the EEOC urges the D.C. Court of Appeals to uphold the NLRB’s pliable, fact-specific test to determine whether an entity sufficiently controls the terms and conditions of an individual’s employment to be a joint employer.
In a setback to private colleges and universities, the National Labor Relations Board ruled on August 23, 2016 that student assistants have unionization and collective bargaining rights under the National Labor Relations Act. In so ruling, the Board reversed its 2004 decision in Brown University, in which it held that graduate students are not employees under the NLRA, and therefore do not have unionization rights. The immediate effect of the new Columbia University holding is that graduate and undergraduate student assistants will be able to unionize. The far-reaching decision has the potential to transform the student assistant-university relationship, as well as the collegiate learning environment.
While graduate student unions are commonplace at many public colleges and universities (as students’ unionization and collective bargaining rights at public institutions are governed by state law), the Columbia decision expands unionization and collective bargaining rights to student assistants at private colleges and universities, including to undergraduate student assistants and to student assistants who receive research funding from external grants. This decision – which fundamentally injects NLRA considerations into the relationship between student and university – has important implications for private colleges and universities and their employment of student assistants.
The Seventh Circuit recently became the first federal appellate court to say that employers can’t prevent class/collective actions through waivers in mandatory arbitration agreements, holding that such waivers interfere with employees’ rights to engage in concerted activity in violation of the National Labor Relations Act. The court’s holding in Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016), creates a circuit split on this issue and calls into question the effectiveness of such waivers for employers with employees working in states covered by the Seventh Circuit (Wisconsin, Illinois and Indiana).
Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer’s Code of Conduct. Ho hum, business as usual. (We have written extensively about the Board’s crusade against what it considers overbroad work rules. See, for example, our posts here, here and here) What is fascinating, however, about this otherwise unremarkable decision is the spirited dissent penned by Member Philip A. Miscimarra, calling for the NLRB to overrule Board precedent which renders unlawful all employment policies, work rules and handbook provisions whenever employees could “reasonably construe” the language to prohibit the exercise of rights afforded by National Labor Relations Act Section 7, which protects “concerted” activities that employees engage in for the purpose of “mutual aid or protection.” Rather, as detailed below, Member Miscimarra proposes a balancing test, which would take into consideration, at minimum, (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.
“Pay no attention to that man behind the curtain. The great Oz has spoken.” Invoking the Wizard of Oz, US Secretary of Labor Thomas E. Perez and the US Department of Labor unveiled last week the finished product of its highly-anticipated union “persuader” rule, requiring employers and their advisors to report any arrangement (e.g., third-party consultants, legal counsel, etc.) to persuade employees, directly or indirectly, concerning their right to organize.