The United States Department of Labor has announced that it will publish its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA) on March 24, 2016, almost five years after first proposing it. The rule (which was opposed by the American Bar Association, Association of Corporate Counsel, the Attorneys General of many states, most employers and many key trade associations, among others) is briefly summarized below.
Articles Discussing General Labor Law Topics And The NLRA.
Labor Department Unveils Final “Persuader Rule”
Executive Summary: On March 23, 2016, the U.S. Department of Labor (DOL) issued the final version of its “persuader rule,” which requires employers, third-party lawyers and other labor consultants to disclose to the DOL any arrangement to persuade employees directly or indirectly concerning the right to organize or bargain collectively. These reports must be filed electronically and, once filed, become publicly available records.
Preventive Strategies First Quarter 2016
A bulletin on employment, labor, benefits and immigration law for employers.
NLRB Continues Attack on Class and Collective Action Waivers
There seems to be no end in sight to the standoff between the National Labor Relations Board and at least a majority of the federal courts over the legality of arbitration agreements that require employees to waive the right to lead or participate in class or collective actions.
Unions and the Gig Economy
Numerous studies confirm that “gig” workers – freelancers, temporaries, and the like – make up a fast-growing segment of the U.S. workforce. Now, the modern gig economy is coming face to face with traditional industrial relations. A New York local chapter of the International Brotherhood of Electrical Workers has filed a representation petition with Region 29 of the National Labor Relations Board (NLRB) seeking to organize 600 Uber drivers who transport passengers to and from LaGuardia Airport.
Supreme Court Justices Appear Ready to Overturn Mandatory Union Fees for Public Sector Employees
The United States Supreme Court appears headed toward outlawing “agency-shop” or “fair share” provisions in public sector collective bargaining agreements, requiring non-members to pay union fees, sometimes reluctantly, in lieu of dues. Frederichs v. Cal. Teachers Ass’n, No. 14-915, argued Jan. 11, 2016.
The 2015 Federal Rules Amendments: the importance of proportionality
The 2015 amendments to the Federal Rules of Civil Procedure went into effect on December 1, 2015. They apply not only to cases filed on or after this date but pending proceedings “insofar as just and practicable.” The Amendments focused largely on e-discovery and how to tame discovery abuses in light of the electronic information explosion.
Labor Relations Issues to Watch for in 2016
In 2015, the National Labor Relations Board has given us the “quickie” election rule, Browning-Ferris Industries of California (greatly expanding instances where joint employer relationship exists), Northwestern University (declining to determine whether college football players who receive grant-in-aid scholarships are employees under the National Labor Relations Act), Banner Estrella Medical Center (finding employer’s blanket request that employees keep an investigation confidential violated employees’ right to engage in protected concerted activity), Piedmont Gardens (adopting a balancing test to determine whether employee witness statements are confidential), and Lincoln Lutheran of Racine (ruling an employer’s obligation to deduct union dues from employees’ pay continues after expiration of the collective bargaining agreement), among other developments.
Citing NLRB’s Long Delay, Court Refuses to Issue Temporary Injunction
Pointing to the NLRB’s 15-month delay in filing its petition as undermining its claim of irreparable injury, a federal district court in Illinois has denied the National Labor Relations Board’s application for injunctive relief against an employer under Section 10(j) of the National Labor Relations Act. Ohr v. Arlington Metals Corporation, 2015 U.S. Dist. LEXIS 160492 (N.D. Ill. Dec. 1, 2015). Section 10(j) of the Act permits the NLRB to seek a federal court injunction forbidding unions and employers from committing unfair labor practices during the pendency of related unfair labor practice litigation before the agency.
Has NLRB’s Reach Exceeded its Grasp in Trashing Restaurant’s Non-Board Lawsuit Settlement?
A settlement of two Fair Labor Standards Act claims (an individual lawsuit and a class action) by employees of a Bronx restaurant and the employer’s Racketeer Influenced and Corruption Organizations Act lawsuit against a union seeking to represent the employer’s employees has fallen through as a result of National Labor Relations Board objections to two provisions in the settlement agreement – the non-disparagement and non-disclosure provisions.
Labor Board Decision and Worker Scheduling Requests on Congress’ Plate
Congress will grapple with bills to overturn the federal labor board’s decision on joint employers and to make work schedules more predictable for workers in 2016.
D.C. Circuit Ruling Yet Another Reminder of NLRB’s Handbook Initiative
Three policies in an employer’s handbook violated Section 8(a)(1) of the National Labor Relations Act, the U.S. Court of Appeals for the District of Columbia Circuit has held, agreeing with the National Labor Relations Board. The Court disagreed, however, that two other policies found illegal by the NLRB violated the Act. Hyundai Shipping Agency, Inc. v. NLRB, No. 11-1351 (D.C. Cir. Nov. 6, 2015).
Congress Proposes Legislation to Overturn NLRB Ruling on Joint Employer Liability
Lawmakers have introduced identical legislation in both chambers of Congress to overturn a landmark decision by the National Labor Relations Board intended to broaden joint employer liability. By including employers who may only indirectly affect employees’ terms and conditions of employment, or have the right to affect such terms and conditions, the controversial Board decision has swept many more businesses under the “joint employer” umbrella and increased labor union bargaining power.
Preventive Strategies Fourth Quarter 2015
A bulletin on employment, labor, benefits and immigration law for employers.
Union Seeks Labor Board Review of Regional Director’s Adverse Joint Employer Decision
In Green JobWorks LLC/ACECO, LLC, No. 05-RC-154596 (Oct. 21, 2015), discussed here, a case believed to be the first post-Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), to apply the new joint employer “test” articulated there, a National Labor Relations Board Regional Director found that a subcontractor and temporary staffing agency were not joint employers. Now, the petitioning union, disappointed by the ruling, has requested NLRB review of that decision.