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Top Five Labor Law Developments for June 2017

In an amicus brief filed with the U.S. Supreme Court, the U.S. Department of Justice reversed itself and argued for the legality of mandatory arbitration agreement provisions waiving employees’ rights to bring class actions under the National Labor Relations Act.

Is the path to Unionized Gig Workers Paved through Credit Card Gratuities?

If at first you don’t succeed, try, try again.

Seventh Circuit Upholds Wisconsin 'Right to Work' Law

On Wednesday, a unanimous three-judge panel of the 7th Circuit Court of Appeals upheld Wisconsin's right to work law, which ensures that employees must not be required, as a condition of employment, to become a member of a union or pay dues to a union they do not belong to. The International Union of Operating Engineers Local 139 v. Schimel (Nos. 16-3736 and 16-3834) decision follows a similar 2014 decision regarding Indiana's "right to work" law, which the appeals court found to be controlling precedent.

Change is Coming: Management-Side Labor Attorney Emanuel Nominated to Labor Board

President Donald Trump has nominated management labor attorney William Emanuel to fill one of the two vacant seats on the five-member National Labor Relations Board.

Here We Go Again! DOL Proposes to Rescind the Permanently Enjoined “Persuader” Rule (and Perhaps Revise It)

The U.S. Department of Labor (DOL) moved one step closer to undoing President Obama's permanently enjoined “persuader activity” regulation when, on June 12, the agency issued a notice of proposed rulemaking (NPRM) for reverse rulemaking to rescind the rule and perhaps revise it. According to the NPRM, the DOL will be accepting public comments on the rule until August 11, 2017.

President Nominates Two to the NLRB: Will Newcomers Bring Much-Needed Change to the Agency?

On June 27, 2017, President Trump nominated labor attorney William J. Emanuel to fill one of two vacancies to the National Labor Relations Board (NLRB).

Second Circuit Upholds NLRB Whole Foods Decision Allowing Employee Recording in the Workplace

With little fanfare, the Second Circuit Court of Appeals recently upheld a National Labor Relations Board decision striking down Whole Foods’ policies prohibiting workplace audio or video recording without prior approval from management. In an unpublished summary order with no precedential value, the Second Circuit ruled that the NLRB’s decision was supported by substantial evidence and consistent with the National Labor Relations Act.

Top Five Labor Law Developments in May 2017

1. Handbook rules requiring employees to obtain preapproval to use cameras and other recording devices at work are not per se unlawful, according to the National Labor Relations Board. Mercedes-Benz U.S. Int’l Inc., 365 NLRB No. 67 (May 16, 2017).

Federal Court Washes Away New York City’s Pro-Union Ordinance

A New York City ordinance requiring car wash companies to post a higher surety bond if they do not sign a union bargaining agreement covering their employees is invalid because it unlawfully favors unionization, and therefore runs afoul of the National Labor Relations Act, a federal district court judge has ruled on May 26, 2017. Association of Car Wash Owners v. City of New York, No. 15 Civ. 8157. The ordinance was signed by Mayor Bill de Blasio on June 29, 2015, and the lawsuit was filed in 2015 by the Association of Car Wash Owners representing 100 car washes within the City.

Labor Board Finds Employer Guilty Of “Textual Harassment”

In what appears to be a first-of-its kind decision, the National Labor Relations Board recently determined that an employer committed an unfair labor practice when one of its managers asked a pointed question via text message to an employee about whether his loyalties lie with the company or with the union. While most employers know – or quickly learn – that they should avoid interrogating their employees about union matters, this decision demonstrates that the Labor Board could take a very broad approach when determining the contours of the law, and serves as an important lesson for management personnel dealing with a union drive (RHCG Safety Corp. and Construction & General Building Laborers, Local 79).