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.
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.
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.
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.
Donald 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.
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.
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.