The U.S. Senate narrowly confirmed Marvin Kaplan to one of two vacant seats on the National Labor Relations Board on August 2, 2017. Kaplan was sworn in on August 10. Kaplan is a former counsel to the Commissioner of the Occupational Safety and Health Review Commission. His confirmation leaves one vacant seat on the five-member Board. President Donald Trump has nominated William Emanuel, a management-side lawyer working in private practice, for the remaining seat.
Articles Discussing General Labor Law Topics And The NLRA.
Labor Law Update Summer 2017
Goldberg Segalla’s Labor Law Update keeps insurers, contractors, construction managers, developers, and other clients involved in construction informed about significant changes and cases involving New York’s “Scaffold Law” — Labor Law §§200, 240(1), and 241(6).
D.C. Circuit Rejects Labor Board Joint Employer Determination
On August 4, 2017, the U.S. Court of Appeals for the District of Columbia Circuit refused to enforce a holding by the National Labor Relations Board (Board) that the Cable News Network (CNN) was a joint employer.1 In the opinion, authored by Chief Judge Merrick Garland, the court found that the Board failed to adequately grapple with its conflicting precedent concerning what relationships constitute “joint employment.”
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.
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.
Heavy Scrutiny of Employment Agreements
Agreements within employment contracts and employee handbooks continue to be subject to strict scrutiny by the NLRB. In a recent decision, the Sixth Circuit enforced an NLRB Order finding multiple NLRA violations for prohibiting employees from engaging in “collective bargaining.” The issue should be of interest to all employers given the common misconception that the NLRA only applies to unionized employers.
Too Confidential?
Knowledge is power, especially for businesses. Protecting that knowledge is often key to remaining competitive. Similarly, knowing or sharing information about wages, hours and working conditions is often important to employees. Sometimes these interests collide requiring the National Labor Relations Board (NLRB) or a court to decide whether an employer’s policies, specifically confidentiality policies, go too far.
New NLRB Chairman Dissented from Controversial Decisions
Philip Miscimarra was named Chairman of the National Labor Relations Board by President Trump on April 24, 2017. He had been named Acting Chairman soon after President Trump’s inauguration.
union kNOw – April 2017
Building off of what organizers see a successful February 16 ‘Day Without Immigrants,’ a second series of protests and strikes has been scheduled for May 1.
NLRB Ruling on Joint Employers Should be Reversed, Congressional Republicans Urge
Two years after the National Labor Relations Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), which overturned 30 years of precedent, 57 members of Congress, mostly Republicans, supported by business owner advocacy group Workforce Fairness Institute, are urging the Subcommittee on Labor, HHS & Education Committee on Appropriations “to include a one-year hold on the NLRB’s harmful and confusing definition of joint employers [in Browning-Ferris] in the FY18 Labor, Health and Human Services, Education, and Related Agencies Appropriations legislation.” In a letter dated April 5, 2017, to the subcommittee Chairman and Ranking Member, the 57 legislators cited a report by the U.S. Chamber of Commerce that warned the decision will result in decreased business values, increased operational and legal costs, less growth, and fewer jobs.
Unions Winning More Elections, But Organizing Fewer New Workers
Unions won 72% of all representation elections conducted by the National Labor Relations Board in 2016, and 74% when the election involved a small unit of 49 workers or less, according to a Bloomberg BNA report based on NLRB data. These percentages are a four-year high for unions. At the same time, fewer workers were organized — 57,800 (lowest in four years), down from 63,300 new members in 2015.
Oral Arguments Held in Browning-Ferris International v. NLRB
On Thursday, March 9, 2017, the U.S. Court of Appeals for the District of Columbia Circuit held long-awaited oral arguments in Browning-Ferris International v. NLRB. The case will be critical in defining joint employment under the National Labor Relations Act, and could have significant ramifications throughout the business community.
‘A Day Without Immigrants’ National Strike Planned – What Can Employers Do?
Activists throughout the U.S., but focused in Washington, D.C., are planning a protest that exhorts employees not to report to work on February 16, 2017, as one measure to demonstrate what a “Day Without Immigrants” can mean to the economy.
NLRB’s General Counsel Issues Memo on Arbitration Issue Pending at Supreme Court
As a result of the Supreme Court’s recent decision to grant certiorari and address the dispute over whether class and collective action waivers are lawful in an arbitration agreement, many employers have asked whether similar cases pending at the NLRB will be held in abeyance while the Court resolves this issue. The NLRB’s general counsel recently issued a memorandum to the agency’s regional offices providing a partial answer to this question.