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Total Articles: 27

NLRB Proposes Rule to Exclude Student Workers at Private Colleges, Universities from NLRA Coverage

The National Labor Relations Board (NLRB) has issued a Notice of Proposed Rulemaking to establish that “students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not ‘employees’ within the meaning of Section 2(3) of the [National Labor Relations] Act.”

Federal Appeals Court Reworks Legal Test To Determine Faculty’s Union Status

In a unanimous opinion, a federal appeals court just rejected the National Labor Relations Board’s “subgroup majority status rule” for determining when college and university faculty members are to be deemed managers and therefore excluded from coverage under the National Labor Relations Act (University of Southern California v. NLRB). The rule, first articulated in the Board’s 2014 Pacific Lutheran decision, required that a faculty subgroup (e.g. nontenure faculty) seeking to organize must have majority control of any committee that made managerial decisions before the Board would find that subgroup to be managers.

eLABORate: NLRB Reverts Back to Company Friendly Independent Contractor Test

In a decision that has significant implications on the status of ride share drivers for companies such as Lyft and Uber, the National Labor Relations Board (NLRB) on Friday, January 25, 2019, issued a ruling that held that SuperShuttle franchisee van drivers are independent contractors. The NLRB’s decision changes its prior independent contractor test and is a big win for companies that contract labor.

NLRB Puts Long-Standing Common Law Test Back Into Play in SuperShuttle DFW, Inc. Decision

The National Labor Relations Board (NLRB) is returning to its long-standing traditional common law test. The business-friendly decision relates to whether an individual should be classified as an employee or an independent contractor, and became official on January 25, 2019 when the NLRB revised its independent contractor test by overturning a prior 2014 decision.

Supershuttle Transports Independent Contractor Status into the Spotlight

Executive Summary: On January 25, 2019, the National Labor Relations Board (NLRB) affirmed the Acting Regional Director’s determination that franchisees who drive for SuperShuttle are independent contractors, not statutory employees, and therefore are unable to organize or join a union. See SuperShuttle DFW, Inc., and Amalgamated Transit Union Local 1338 (Case 16-RC-010963). In reaching this decision, the Board shifted the analysis back to the common-law agency test it has long used for determining when a worker will be considered an independent contractor rather than an employee for purposes of coverage under the National Labor Relations Act (NRLA). The Board’s decision in SuperShuttle emphasizes the role of entrepreneurial opportunity and rejects the overemphasis placed on “right to control” by its 2014 decision in FedEx Home Delivery, 361 NLRB 610 (2014).

Independent Contractor vs. Employee Mis/Classification Issue Continues To Evolve: The NLRB Weighs In (Again)

As the independent contractor versus employee status debate evolves across the United States through legislation, court decisions, and agency enforcement actions, the National Labor Relations Board (“NLRB” or “Board”) clarified its standard on January 25, 2019 in SuperShuttle DFW, Inc.1 In this decision, the Board returned to the common-law independent contractor test in effect prior to 2014, in which various factors are weighed to assess a service provider’s proper status.

NLRB Decision Shines Spotlight on “Entrepreneurial Opportunity,” Returns to Prior Independent Contractor Analysis

On January 25, 2019, the National Labor Relations Board issued a decision friendly to businesses—particularly those operating in the gig economy—in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019).

NLRB Overrules Obama-Board Independent Contractor Precedent, Reinstates Common Law Test

The National Labor Relations Board has overruled FedEx Home Delivery, 361 NLRB 610 (2014). In that case, the Obama-Board decided that, in determining whether an individual is an independent contractor or an employee, “entrepreneurial opportunity represents merely ‘one aspect of a relevant factor that asks whether the evidence tends to show that the putative contractor is, in fact, rendering services as part of an independent business.’”

eLABORate: New Year, But Joint-Employer Standard Remains Unclear

As we enter 2019, the NLRB’s employee-friendly standard for determining joint employer status under the National Labor Relations Act remains unclear. As we previously reported, the Board is currently engaged in rulemaking to set a joint employment standard through regulation, and this new standard is expected to limit joint employer status to only those situations where an entity exercises direct control over employees’ essential terms and conditions of employment. This has been an issue that has raised serious concerns in recent years among franchisors, contractors, and other employers who contract with outside entities. For example, would a national fast food franchisor be jointly liable for alleged employment law claims brought by the employees of a local franchisee? However, a recent appellate court decision signals that the Board’s rulemaking may only lead to further litigation.

Federal Judge Finds Jimmy John’s Not a Joint Employer

An Illinois federal judge found sandwich franchisor Jimmy John’s was not a joint employer of its franchisees’ assistant store managers (“ASMs”). Judge Charles Kocoras based his decision on the facts that Jimmy John’s did not “(1) have the power to hire or fire franchise employees; (2) supervise and/or control employee work schedules or conditions of payments; (3) determine the rate and method of payment; or (4) maintain employment records for franchise employees.”

Joint Employment under NLRA: Interpreting D.C. Circuit Court’s Browning-Ferris Decision

In a highly anticipated decision on the National Labor Relations Board’s controversial 2015 joint-employer standard under the National Labor Relations Act, the federal appeals court in the District of Columbia has partially upheld the standard. Browning-Ferris Industries of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018).

Joint Employment Test Heads Back to NLRB After DC Circuit's Mixed Ruling

Depending on one's reading, a federal appellate court has either given new life to the Obama-era Browning-Ferris joint employment standard or set it up for the National Labor Relations Board (NLRB) to further chip away at the test.

NLRB Update: Board Issues New Strategic Plan, Extends Joint-Employer Rule Comment Deadline, and Announces NLRB Solicitor Appointment

The National Labor Relations Board recently issued a new Strategic Plan for Fiscal Years 2019 through 2022, extended until January 14, 2019 the comment period on its proposed joint-employer rule, and announced the appointment of Fred B. Jacob as NLRB Solicitor.

Answers to Frequently Asked Questions on the NLRB’s New Joint Employment NPRM

On September 14, 2018, the National Labor Relations Board (NLRB) published a notice of proposed rulemaking (NPRM) in the Federal Register addressing how it will determine whether an employer is a joint employer of another entity’s employees. The NPRM presents the potential for a welcome change for employers, many of which have struggled with the strict joint employment standard imposed over the last few years. Here are answers to some frequently asked questions about the NPRM and its practical impacts on employers below.

eLABORate: NLRB Seeks to Settle the Controversy Surrounding Joint Employer Status

On Friday, September 14, 2018, the National Labor Relations Board (NLRB) published a proposed regulation. The regulation aims to establish the standard for determining whether two employers are joint employers of a group of employees under the National Labor Relations Act. The NLRB’s proposed rule will affect many businesses that operate under a franchise model, including but not limited to the fast food industry.

NLRB's Proposed New Rule Would Limit Joint-Employer Status

Notice of the National Labor Relations Board’s (NLRB) highly anticipated proposed new rule on establishing joint-employer status under the National Labor Relations Act (NLRA) was published in the Federal Register on September 14, 2018 (and is available here).

Labor Board Proposes Complete Overhaul To Joint Employment Rule

In a move that has been anticipated for several months, the National Relations Labor Board today published a proposed rule that would fundamentally alter the definition of joint employment, making it more difficult for businesses to be held legally responsible for alleged labor and employment law violations by staffing companies, franchisees, and other related organizations. The rule, if eventually adopted, would also limit the ability of employees from affiliated companies to join together to form unions.

Back to Pre-BFI? NLRB Proposes a ‘Direct and Immediate’ Joint-Employer Standard

Approximately three years after the National Labor Relations Board (NLRB) turned its decades old joint-employer standard on its head in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, on September 13, 2018, the Board proposed a rule to correct that mistake and return balance to the labor-management landscape. The Board does not often engage in rulemaking and usually makes policy through adjudication. At the same time, issuing a regulation on this vital matter has the advantage of providing long-lasting stability and predictability for all stakeholders.

NLRB Proposes Revised Joint Employment Rule

he National Labor Relations Board (NLRB) has announced it is issuing a Notice of Proposed Rulemaking (NPRM) to redefine the standards for determining whether two or more employers are joint employers under federal labor law. The proposed rule was expected following statements in June by NLRB Chairman John Ring that the board was planning to engage in the federal rulemaking process in order to consider and address joint employment issues in a comprehensive manner.

Labor Board Will Soon Issue New Rule To Solve Joint Employment Dilemma

In a rare procedural move that caught many by surprise, the National Labor Relations Board announced on Wednesday that it will soon start the rulemaking process to clarify the current joint employment standard. Perhaps frustrated by uncertainty resulting from the recent reversal of a Board decision on the topic and the seemingly stalled litigation sitting at the D.C. Circuit, Chairman John Ring said that he hopes NLRB rulemaking would bring resolution to this matter “as soon as possible.”

2018 Omnibus Funding Bill Keeps Government Open, Minus the Critical Joint-Employer Rider

On March 23, 2018, the last day before a potential government shutdown, Congress passed and the president is expected to sign a massive $1.3 trillion omnibus spending bill to fund the federal government through fiscal year (FY) 2018. Although traditionally legislative “riders” to such omnibus spending bills are sometimes added for legislation that is unable to pass Congress as stand-alone bills, this year’s bill did not include the heavily lobbied joint-employer fix to reverse the National Labor Relations Board’s (NLRB) controversial Browning-Ferris Industries decision, which had been a priority for the business community.

Labor Board Returns to Pre-2015 Joint Employer Standard

In Hy-Brand Industrial Contractors Ltd., 365 No. 156 (Dec. 14, 2017), the National Labor Relations Board overturned its standard for determining joint employer status under the National Labor Relations Act established in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). Hy-Brand will be applied retroactively to any matter currently pending before the Board, as well as to all new matters.

It’s Back: NLRB Overturns Specialty Healthcare, Returns to Traditional Community-of-Interest Standard

On December 15, 2017, a divided National Labor Relations Board (NLRB) issued a significant decision in PCC Structurals, Inc., 365 NLRB No. 160, overturning the controversial “overwhelming community-of-interest” test from Specialty Healthcare and its progeny. PCC Structurals thus returns the Board’s “appropriate unit” policy to the traditional community-of-interest standard used for the majority of the NLRB’s history. As a result of overturning Specialty Healthcare, the Board will focus again on not only the commonality between individuals within a petitioned-for unit but also the commonality of those employees with others outside the petitioned-for unit. This focus will likely result in more findings that various narrowly-drawn units are not appropriate and thus lessen the number of “micro-units” ordered by the Board’s regional directors.

NLRB’s New Joint Employer Standard Receives Chilly Reception During Court of Appeals Hearing

The National Labor Relations Board’s new, expanded “joint employer” standard faced sharp criticism during oral argument at the United States Court of Appeals for the District of Columbia Circuit.

Doubling Down: NLRB Joint Employer Standard Under Dual Review

Whether the National Labor Relations Board’s recently articulated joint employer standard can withstand judicial scrutiny is about to be tested. Browning Ferris Industries of California has filed a petition for review (in the United States Court of Appeals for the District of Columbia Circuit) of the NLRB’s bargaining order, asking the Court to deny enforcement of the Board’s Order requiring the company to bargain with the union based on an election conducted pursuant to the agency’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015).

NLRB to Consider Whether Students at Private Universities Are “Employees” Covered by the NLRA

Whether graduate student assistants at private universities are “employees” covered by the National Labor Relations Act (NLRA) might soon be taken up (again) by the National Labor Relations Board (NLRB).

House Panel Advances Bill to Clarify Joint Employer Standard

Following a series of congressional hearings on the National Labor Relations Board's Browning-Ferris decision, the House Committee on Education and the Workforce voted on Wednesday to advance a bill that would effectively reverse the Board's action in that case. The Committee voted 21-15 along party lines to send the Protecting Local Business Opportunity Act (H.R. 3459) to the House floor. This legislation rejects the new joint employer standard the Board adopted in Browning-Ferris, and clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers for liability purposes under the National Labor Relations Act.
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