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

On Friday, the Supreme Court agreed to decide the issue of whether employers may include class/collective action waivers in their arbitration agreements.  As we discussed in more detail here, multiple federal appeals courts have split over the issue.  This has created a difficult situation for employers and employees, especially where the employer operates in multiple states.  By the time the Supreme Court takes up the issue in April, there may be a ninth justice on the bench.  We will continue to provide updates as new information becomes available, but in the meantime, we encourage you to visit our sister blog ADR: Advice from the Trenches and read its latest terrific post: When an Arbitration Clause Sounds Permissive But is Not – Does “May” Really Mean “Must”?

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”

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

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.

Continue Reading Work Rules Hanging in the Balance? NLRB Dissenter Proposes Balancing Test Blueprint for Work Rule Challenges, a Significant Departure from Board Precedent

shutterstock_134983682Donald Trump has become part of the national conversation.  Not a single day goes by now without Mr. Trump filling up at least one news cycle.  His recent success reminds me of a fantastic exchange in Private Parts when a researcher is explaining Howard Stern’s improbable success to the infamous Pi … let’s just call him Phil Vomitz:

Researcher: The average radio listener listens for eighteen minutes. The average Howard Stern fan listens for – are you ready for this? – an hour and twenty minutes.

Phil Vomitz: How can that be?

Researcher: Answer most commonly given? “I want to see what he’ll say next.”

Phil Vomitz: Okay, fine. But what about the people who hate Stern?

Researcher: Good point. The average Stern hater listens for two and a half hours a day.

Phil Vomitz: But… if they hate him, why do they listen?

Researcher: Most common answer? “I want to see what he’ll say next.”

Not surprisingly, not a single day also goes by without a workplace water-cooler (or better yet, chat room) conversation about Mr. Trump (or any of the other presidential candidates.)  It can run the spectrum from some friendly banter among co-workers, to a serious dialogue about the issues facing this country, all the way to a heated disagreement coupled with threats of violence.  And it begs the question: how can employers respond to employee political speech in the workplace?  This post addresses that issue.

Continue Reading Trump Trump Trump Trump Trump Trump Everywhere All the Time, Including in the Workplace – What’s an Employer to Do?

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

My colleague, Don Schroeder, was quoted in the Corporate Counsel article, What Employees Can Legally Say on Facebook – And Get Away With, in which he comments about the NLRB’s continued expansion of the meaning of protected concerted activity on social media. The article examines the boundaries of acceptable employee online speech and the legal protections employees can and cannot get under Section 7 of the National Labor Relations Act.

 

The NLRB has once again held that a mandatory arbitration agreement including a class/collective action waiver violates the National Labor Relations Act.  With barely an acknowledgment that the Fifth Circuit reversed its last two decisions reaching the same conclusion, the Board ruled in Amex Card Service Co., No. 28–CA–123865 (Nov. 10, 2015), that Amex committed an unfair labor practice by maintaining and enforcing an arbitration policy that required employees, as a condition of their employment, to resolve all claims against the company through individual arbitration.

Continue Reading NLRB Won’t Take “No” For an Answer — Holds Class Action Waiver in Arbitration Agreement Unlawful Despite Two Previous Reversals at the Fifth Circuit

My colleague, Don Schroeder, was quoted in the Corporate Counsel article, Circuit Court Backs NLRB on Social Media Conduct, Voids Handbook Provision, in which he analyzes the NLRB’s stance on employer rules regarding worker conduct on social media. In addition to his analysis, Schroeder provides language that can be used as a disclaimer for employers in the process of drafting their online employee speech policies. The article outlines the latest ruling in Triple Play Sports Bar & Grille v. NLRB and its impact on what is considered “protected concerted activity.”