Welcome to July! As we head deeper into the summer, the employment law world continues to heat up (and we’re not just talking about the record temperatures across the country!). We have rounded up the most recent developments impacting employers here:

The U.S. Supreme Court closed out an epic 2017 term (pun slightly intended) with the issuance of Epic Systems Corp. v. Lewis, in which it held that contractual waivers of class arbitration in employment agreements are enforceable. Our colleague Gil Samberg also wrote about the decision over on our sister blog, ADR: Advice from the Trenches. The Court also handed down a significant decision in Janus v. AFSCME, holding that public employees who are not union members cannot be required to pay agency fees to a union even if that union represents them for purposes of collective bargaining. Last but certainly not least, Justice Anthony Kennedy announced his retirement from the bench, effective July 31.

At the state level, both New York and Maryland have recently enacted sweeping legislation in response to the #MeToo movement, which we wrote about here and here. New York employers must ensure that their employment agreements are in compliance with the new law by July 11, 2018. On the heels of the New York Paid Family Leave law, which took effect on January 1, 2018, Massachusetts Governor Charlie Baker just signed into law a new paid family and medical leave program that is even more generous than the New York law. That law also increases the state minimum wage and eliminates premium pay for Sundays and certain holidays. We outline the parameters of the new law here.

In New York City, the bill requiring employers to grant two temporary schedule changes per year takes effect on July 18th. Finally, in response to the bevy of leave laws that have recently been passed throughout the country, we will be debuting a new blog series addressing issues arising from and relating to leaves of absence. The series will include posts on navigating the ADA, performance and benefits issues for employees on leave, and the interplay between federal and state-specific leave laws. Stay tuned for more and as always, do not hesitate to contact your Mintz Levin ELB team with any questions about compliance with these laws.

Wishing our readers a happy and restful 4th of July!!

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

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

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

My colleague Natalie Young, was quoted in a Turnarounds & Workouts article entitled, “Trump Wins Again: Debtor-Employers Allowed to Reject Expired CBAs”, in which she explains the bankruptcy court’s decision to allow Trump Entertainment to reject expired collective bargaining agreements. The article examines the factors that influenced the court’s ruling, and outlines the requirements necessary for a debtor-employer to successfully reject an expired CBA during bankruptcy.

Last week, Browning-Ferris Industries, the California-based waste management company, appealed two decisions issued by the National Labor Relations Board related to the definition of joint employer.  Its appeal to the U.S. Court of Appeals for the D.C. Circuit represents just the latest chapter in an ongoing saga that began with a momentous ruling by the NLRB this past August.  The outcome of this appeal could have serious implications for affected companies, workers and other stakeholders.

Continue Reading Adventures in Joint Employment: the Browning-Ferris Saga Continues with an Appeal to the D.C. Circuit Court of Appeals

It is a familiar scenario: a company is on the verge of bankruptcy, bound by the terms of a collective bargaining agreement (CBA), and unable to negotiate a new agreement.  However, this time, an analysis of this distressed scenario prompted a new question: does it matter if the CBA is already expired, i.e., does the Bankruptcy Code distinguish between a CBA that expires pre-petition versus one that has not lapsed?

Continue Reading Third Circuit Court of Appeals Permits Chapter 11 Debtor to Reject Expired CBA

Last week, the National Labor Relations Board (the “Board”) voted 3-1 to reconsider its decision in Brown University, 342 NLRB 483 (2004) that graduate teaching and research assistants are not employees under the National Labor Relations Act (the “Act”) and, therefore, not entitled to collective bargaining rights.  Many predict that the current Board will reverse Brown, opening up the door to graduate student unionization among private non-profit institutions.

Continue Reading NLRB to Reconsider Whether Graduate Teaching Assistants at Private Universities Can Unionize

The National Labor Relations Board, in one of its first applications of the Browning-Ferris decision, gave hope to non-union contracting entities engaged in franchising and subcontracting relationships.  After an extensive fact-intensive analysis, the Board determined that ACECO, a demolition and remediation contractor was not a joint employer with Green Jobworks, its staffing agency.

Continue Reading NLRB Discusses Joint Employment for the First Time Since Browning-Ferris

In a mild surprise given the current constitution of the Board (read – majority appointed by President Obama), the NLRB declined to assert jurisdiction in ruling on the petition of Northwestern University’s scholarship football players to unionize.  However, in a display of special teams not seen on a football field in Evanston, Illinois since the days of John Kidd, the NLRB reached its decision without determining if scholarship players were “employees” under the National Labor Relations Act.  Even with this limitation, it is clear competitive balance considerations for NCAA Division I sports has received great deference as a policy matter in a legal dispute.

Continue Reading NLRB Calls Out the Punt Team and Declines Jurisdiction Over Northwestern University Football Players