In a groundbreaking expansion of union rights, the National Labor Relations Board has ruled that off-duty employees have the right to picket on an employer’s premises, unless the employer can prove under the National Labor Relations Act that a ban on picketing was necessary to prevent a disruption of health care operations. Capital Medical Center, 364 NLRB No. 69 (Aug. 12, 2016).
Articles Discussing Labor Law At The Federal Level, Including Issues Under The National Labor Relations Act (NLRA).
NLRB Signals More Trouble Ahead For Employers That Misclassify Employees
For a variety of reasons, employers may prefer to treat those who provide services to them as independent contractors rather than employees. However, when employers exercise a sufficient level of control over the ostensible independent contractors (as outlined in various “factor” tests), they may be considered employees under the law. If that happens, employers can face significant legal consequences. For example, the newly reclassified employees could sue for unpaid minimum and overtime wages, and the employer could face fines, penalties, and other liability under state workers’ compensation statutes. The IRS and state and local taxing authorities might seek income and employment tax withholdings that were not, but should have been, made.
NLRB Expands Jurisdiction in Church-Operated Schools, Distinguishing Between “Religious” and “Secular” Instruction in Faculty Bargaining Unit Cases
In two recent cases, the National Labor Relations Board distinguished between faculty members providing secular instruction and those providing religious instruction, in concluding that only those providing religious instruction were exempt from National Labor Relations Act coverage. In so doing, the Board applied its own test for religious exemption and expanded its jurisdiction beyond what the U.S. Supreme Court had deemed appropriate for a church-operated school.
NLRB Signs Off On Narrow Confidentiality Provision for Employee Reinstatement Agreements
In the recent case of S. Freeman & Sons, Inc., the National Labor Relations Board confronted the question of “whether an employer can require an employee to keep confidential the terms of a settlement agreement in exchange for reinstatement.” 364 NLRB No. 82 (Aug. 25, 2016). The Board answered in the affirmative, reversing an administrative law judge’s finding that such an agreement violated Section 8(a)(1) of the National Labor Relations Act.
NLRB Decides Charter Schools Are Private Corporations Despite Public Influence
In two separate cases decided on August 24, 2016, a divided National Labor Relations Board concluded that charter schools in Pennsylvania and New York are not political subdivisions within the meaning of Section 2(2) of the National Labor Relations Act and are subject to the Board’s jurisdiction. The practical effect of these decisions is that teachers at both schools may now unionize and enjoy the protections of the Act. The Board’s decision will certainly be revisited and challenged, however, as the Board explicitly stated that it was not announcing a bright line rule for all charter schools. Consequently, whether a particular charter school is subject to Board jurisdiction will be decided on a case-by-case basis going forward.
NLRB Scrutinizes Employer Motivation in Hiring Replacement Workers During Strike
Denying a motion for reconsideration, the National Labor Relations Board recently affirmed its decision in American Baptist Homes of the West d/b/a Piedmont Gardens, addressing the relevance of an employer’s motive in hiring permanent replacement workers for economic strikers. 364 NLRB No. 95 (Aug. 24, 2016). As a result, in cases involving allegations that an employer unlawfully hired permanent replacements, motivation will be a focal point of any investigation, and any “retaliatory” conduct by an employer in response to economic strikers could violate the National Labor Relations Act and require that the employer pay full back pay to permanently replaced economic strikers.
Non-Union, Specialty Lights Maker Must Return Work from Mexico, Federal Appeals Court Rules
The NLRB properly found a non-union employer unlawfully retaliated against striking employees and violated the National Labor Relations Act by transferring work from Illinois to Mexico, the federal appeals court in Chicago has ruled. Amglo Kemlite Labs., Inc. v. NLRB, 2016 U.S. App. LEXIS 15100 (7th Cir. Aug. 17, 2016). The Court enforced the Board’s order requiring the employer to return the transferred work to Illinois, among other things.
Spruce Up Survives, But a Successor’s First Communication to a Predecessor’s Employees is More Critical Than Ever
In Paragon Systems, Inc., 364 NLRB No. 75 (2016), the National Labor Relations Board declined the General Counsel’s request to overturn its 42-year-old decision in Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975).
Newly Organized Employer Must Bargain Over Discretionary Employee Discipline Pre-First Contract, NLRB Rules
Prior to entering into a first contract, an employer has a statutory obligation to bargain with the union that represents its employees before imposing discretionary “serious discipline” (such as suspension, demotion, or discharge) on any of those employees, the National Labor Relations Board again has held. Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016).
NLRB Finds Joint Employers Despite Speculative Future Relationship
Taking its new joint employer standard to new heights, the NLRB found that Retro, a construction company, and Green JobWorks, a temporary staffing agency, are joint employers based on speculative future projects. Retro Environmental, Inc./Green JobWorks, LLC, 364 NLRB No. 70 (Aug. 16, 2016).
When and Where Can the “Line” Be Drawn? NLRB Considers When Off-Duty Employees May Picket a Hospital Employer
The National Labor Relations Board (the “Board”) recently addressed hospital employers’ ability to prohibit picketing by off-duty employees on their own premises. Although the Board concluded that a hospital employer may lawfully ban off-duty employees from picketing on its premises when picketing would disturb patients or disrupt health care operations, the Board offered hospital employers little guidance as to the evidence necessary to support such a ban.
Student Assistants Win Right to Unionize at Private Colleges and Universities
Reversing longstanding precedent, the National Labor Relations Board has ruled that students “who have a common-law employment relationship with their university are statutory employees under the [National Labor Relations] Act.” Columbia University, 364 NLRB No. 90 (Aug. 23, 2016).
NLRB Rules that Student Assistants Can Unionize; Debate May Now Shift to Whether They Should
In a sweeping decision issued on August 23, 2016, the National Labor Relations Board reversed its 2004 holding in Brown University1 that graduate students are not employees under the National Labor Relations Act. The Board ruled that graduate and undergraduate student assistants at Columbia University are employees who have the right to unionize, including those assistants engaged in research funded by external grants. The broadly worded decision has far-reaching ramifications for private sector universities because of its apparently intended wide-spread applicability.
NLRB Holds Student Assistants Who Have a Common-Law Employment Relationship With a Private University Are “Employees” Under The National Labor Relations Act
Executive Summary: In an August 23, 2016, decision, Trustees of Columbia University, 364 NLRB No. 90 (2016), the National Labor Relations Board (NLRB) overruled existing precedent and held that student assistants, who have a common-law employment relationship with a private university, are statutory employees under the National Labor Relations Act (NLRA) and are entitled to its protections.
NLRB: Failure to Bargain Over Non-Compete Agreement Violated NLRA, But Confidentiality Provision Lawful (Surprise!)
A company’s requirement that new employees represented by a union sign a non-compete and confidentiality agreement (NCCA) as a condition of employment violated the National Labor Relations Act because the NCCA is a mandatory subject of bargaining that could not be unilaterally implemented, the NLRB has held. Minteq International, Inc., 364 NLRB No. 63 (July 29, 2016). However, contrary to its recent inclinations, the Board also found that an individual provisions of the NCCA – concerning confidential information – was lawful.