On December 1, 2017, two weeks after being sworn in, NLRB General Counsel Peter Robb issued his first GC Memorandum. When the General Counsel’s office changes hands from one party to the other, some disruption is expected. Here, Mr. Robb made quite clear that his agenda would not support many of the Obama-era initiatives. In fact, he called into question fifteen significant legal issues that will now be subject to “alternative analysis” (i.e., seeking reversal of earlier precedents that Mr. Robb deems to be wrongly decided), rescinded seven memoranda, and revoked five initiatives.

As Mr. Robb’s agenda continues to unfold, we will track significant developments to explain how these decisions will impact employers. Here is the list of his actions so far plus an added bonus – NLRB decisions overruling Obama-era NLRB rulings:

Continue Reading The NLRB’s General Counsel Rescinds, Revokes and Questions

The recent controversy involving the Google employee fired for challenging his employer’s diversity policies highlights some misconceptions concerning free speech rights in the workplace.

That controversy also adds an interesting dimension to the spate of reported terminations of individuals who were internet-shamed for participating in alt-right demonstrations (such as the employee who reportedly resigned from Top Dog Café in Berkeley). Ironically enough from a timing perspective, those job actions also implicate another fundamental right – the right to freedom of assembly (and derivatively, of association).

Continue Reading What Can You Say in the Workplace? Whatever Your Employer Allows You to Say ….

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.

Continue Reading Second Circuit Holds Termination of Employee Who Attacked Supervisor in Obscene Facebook Post Violates NLRA

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.

Continue Reading March Vastness: Blanket Policies on Employee Salary and Discipline Disclosures Unlawful, Says D.C. Circuit Court

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.

Continue Reading March Inevitableness? Considering the Legal Consequences of Pay to Student-Athletes

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.

Continue Reading Where Are We With the Enforceability of Class Action Waivers in 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.

Continue Reading EEOC Urges Federal Appellate Court to Uphold NLRB’s Expansive Definition of “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.

Continue Reading National Labor Relations Board Grants Student Assistants the Right to Unionize at Private Colleges and Universities

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).

Continue Reading Score One for the NLRB: Seventh Circuit Becomes First Federal Appeals Court to Hold that Class/Collective Action Waivers in Arbitration Agreements Violate the NLRA