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.
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 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).
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?
In a 3-2 decision divided along party lines, the National Labor Relations Board has ruled that employees have a presumptive right to use their employers’ email systems during non-working time to discuss unionization and the terms and conditions of their employment. In so holding, a three-member majority of the Board explicitly overruled the Board’s Bush-era 2007 Register Guard decision in order to make “[n]ational labor policy . . . responsive to the enormous technological changes that are taking place in our society.” We explore the NLRB’s controversial decision below.
Continue Reading Did the NLRB Really Just Grant Employees the Presumptive Right to Use Employer-Provided Email Systems? We Break Down the Purple Communications Decision and What It Means for Employers.
Written by Erin C. Horton
Last week, the NLRB took an exceptionally broad view of what constitutes “concerted activity” and what kind of efforts are aimed at “mutual aid or protection” under the National Labor Relations Act. For employers, this could mean increased Board scrutiny of internal investigations into employees’ complaints of harassment.
Continue Reading National Labor Relations Board Majority Holds That Seeking Co-Worker Assistance with an Individual Harassment Complaint is Protected Activity Under the Act; Overrules Holling Press, Inc.
The California Supreme Court issued an important decision last week on the enforceability of employment class action waivers included in arbitration agreements. The result: private parties can contract for the waiver of the right to pursue a class action in any forum. The California Supreme Court had considered this question before in 2007 in Gentry v. Superior Court, finding that an employment class action waiver could be struck down on the grounds that it violated public policy or because it was unconscionable. But in Iskanian v. CLS Transportation Los Angeles, LLC, the Court recognized that recent U.S. Supreme Court precedent now required it to reverse course. In doing so, it made some other noteworthy pronouncements as well.