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Senate HELP Committee Considers NLRB Nomination

During a relatively sedate hearing to consider the nomination of Lauren McFerran to serve as a member of the National Labor Relations Board, the issue of joint employment and franchisor liability took center stage, at least for the Republican members of the Senate Committee on Health, Education, Labor and Pensions (HELP).

Board Awards Unprecedented Remedies and Signals It Could Go Further

The National Labor Relations Board’s decision in HTH Corporation, 361 NLRB No. 65 (2014), re-affirms the Board’s intent to impose aggressive, unprecedented remedies. In this case, the Board openly signaled that it has not yet reached the outer limits of its authority, and is prepared to go even further.

Board Deems Employees' Lengthy and Detailed Social Media Comments Unprotected

After years of NLRB decisions protecting employees’ profanity-laced tirades and outright threats against management in social media stream-of-consciousness posts, the Board recently said “no.” In Richmond District Neighborhood Center, 361 NLRB No. 74 (2014), the NLRB upheld the ALJ’s decision that two employees’ Facebook plan for insubordination veered into the land of “unprotected” activity under the NLRA.

Credible threats of insubordinate activity could override NLRA protections for employees’ Facebook postings.

A few months ago, the National Labor Relations Board (the Board) determined that an employee’s profanity-laced tirade did not lose the protection of the National Labor Relations Act (NLRA), because the tirade followed the employer’s statement that if the employee didn’t like his job, he could quit.

Volkswagen Adopts "Eurpean-Style" Labor Engagement Policy for Chattanooga . . . but will it stall?

Last week, Volkswagen Group of America announced a "Community Organization Engagement" policy that will allow labor organizations to engage in what the company calls "constructive dialogue" with the company and employees at VW's plant in Chattanooga, Tennessee. The policy announcement comes after the United Auto Workers union lost an election at the Chattanooga plant. After its loss in February, the UAW formed a "members-only" local union to carry the organizing effort forward.

President Reportedly Withdraws Sharon Block's NLRB Nomination

Perhaps sensing former recess appointee Sharon Block's confirmation to the National Labor Relations Board would be an uphill battle, President Obama has reportedly announced that he is withdrawing her nomination. In her stead, as reported by Edward-Isaac Dovere of Politico, the President will name Lauren McFerran, chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions, as his choice to be the fifth Board member.

NLRB Reaffirms D.R. Horton Decision Invalidating Arbitral Class Action Waivers

In a controversial decision that rejects the precedent of numerous federal and state courts, the National Labor Relations Board (NLRB) has reaffirmed its earlier decision in D.R. Horton, Inc., 357 NLRB No. 184 (2012). In D.R. Horton, the NLRB ruled that an arbitration agreement under which employees were required to waive the right to bring class or collective actions violated the National Labor Relations Act (NLRA). In the recent decision, a 3-2 NLRB majority invalidated a similar agreement, concluding that the "reasoning and result" of the Horton decision were correct. Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). Two dissenting NLRB members disagreed with the decision, one observing that the majority had chosen to "double down on a mistake that, by now, is blatantly obvious."

Retail's Best Kept Secret against Non-Employee (Union or Otherwise) Protestors? Property Rights and an Evenly Enforced Policy Restricting Time, Place and Manner

Executive Summary: As the holiday season approaches, non-employee protestors, labor organizers or otherwise, often target retailers in an effort to maximize the reach of their message due to the high foot traffic experienced at retail locations. Repeated and consistent efforts by these non-employee protestors can be a source of concern for retailers and negatively impact both their business and goodwill in the community. Retailers, however, are not without options in these scenarios and can protect themselves with an effective and evenly-applied solicitation and distribution policy restricting the time, place and manner of non-employee activity on their property.

Independent Contractors: The NLRB Refines its Standards

Whether an individual is classified as an independent contractor or an employee has significant legal implications, because most federal and state employment laws do not apply to independent contractors. Independent contractors often afford companies greater flexibility with their workforce, administrative benefits, and cost savings. However, for a variety of government agencies, misclassification of an employee as an independent contractor can result in billions in lost revenue by virtue of lost opportunities for payroll withholdings, among other things. For example, several years ago, the Internal Revenue Service initiated a project of random audits to identify employees misclassified as independent contractors because of the significant annual costs to the federal government.

Rare Insight Into NLRB GC's Thinking on "Joint Employer" Standard

In an October 29 report, POLITICO Pro’s Brian Mahoney offered a behind the scenes insight into the thinking of National Labor Relations Board (NLRB) General Counsel Richard f. Griffin, Jr. on his initiatives to alter the Board’s “joint employer” standard. Quoting from Griffin’s remarks to a West Virginia University College of Law audience in Morgantown, West Virginia, the article disclosed Griffin’s concerns with the legality of his position.