Management & Labor Report Blog

https://laborlaw.foxrothschild.com/

Andrew is a frequent contributor to Management & Labor Report, a blog that focuses on trends and developments in labor law. Andrew and his co-authors cover cases before the National Labor Relations Board (NLRB) and the federal courts that have the potential for setting new precedents or modifying existing precedent. Authored by attorneys in Fox Rothschild’s Labor Management Relations practice group, the blog provides insights and analysis of decisions that could potentially have an impact beyond the parties involved. Topics covered include collective bargaining, the relationship and interactions between an employer and union, union elections and other workplace conduct as it applies to both union and non-union settings

Recent Blog Posts

  • NLRB Rejects Clause Mandating Arbitration of All Disputes The National Labor Relations Board recently invalidated an arbitration agreement that would require employees to arbitrate all “all claims or controversies” with their employer, holding that such a provision would unlawfully restrict employees’ access to the Board to adjudicate labor disputes. The Board’s decision in Prime Healthcare could reverberate widely because the language it declared invalid is particularly common in arbitration agreements. In the ruling, the Board revisited a topic on which it has previously found itself at odds with the U.S. Supreme Court. In... More
  • Scabby the Rat memo signals possible change to NLRB precedent on secondary activity Federal labor law protects neutral (secondary) employers from becoming entangled in labor disputes between another (primary) employer and unions.  For most of the past decade, however, the NLRB has allowed unions to set up various displays – including an inflatable rat (otherwise known as “Scabby”) and an inflatable “fat cat” – near neutral employers’ premises or work sites with relative impunity. A recent memo from the NLRB’s Division of Advice signals a change in position of the Board’s prosecutorial arm.  The... More
  • Uber Drivers are Contractors, Not Employees, According to NLRB’s Chief Lawyer Since the emergence of the “gig economy” in the last decade, courts and government agencies have grappled with the question of whether gig workers should be classified as employees or contractors.  The answer to that question has enormous consequences for employee coverage under various federal and state employment laws, ranging from anti-discrimination statutes like Title VII to wage-and-hour laws like the Fair Labor Standards Act.  Generally, these laws usually only cover employees, and exclude contractors. The National Labor Relations Board, which... More
  • NLRB: Individual Complaints Are Not Protected By Labor Law Employee complaints must be “concerted” to enjoy the protections of federal labor law.  This requirement, contained in the language of the NLRA, stems from the collective nature of rights guaranteed by the NLRA, which ensure protection for union activity or activity that is made for “mutual aid or protection.”  Despite rather clear statutory language, the labor bar has debated the meaning of “concerted” for many decades and the NLRB’s case law has alternated between restricted and expansive definitions over time. In... More
  • No End In Sight: The NLRB’s Joint Employer Standard There is another yet another development in saga of the NLRB’s joint employer standard.  This issue, which has caused consternation in the business community, concerns the Board’s standards for finding that two entities are jointly responsible under federal labor law as the employers of a certain group of employees.  Just before the New Year, the federal Court of Appeals for the District of Columbia upheld the joint employer standard issued by the Board in 2015 in the Browning-Ferris Industries case. We’ve... More
  • Union Election Petition Filed By Employer Not Barred By CBA In Silvan Industries, 367 NLRB No. 28 (2018), the Board decided that an employer, upon being presented with evidence that creates well-founded uncertainty as to a union’s majority support, may file an election petition despite previously agreeing to a collective bargaining agreement with the union that had not yet taken effect.  This Board decision reviews important principles of labor law applicable to employers in a unique situation wherein the majority status of the union representing its employees is challenged. Generally, employers... More
  • Breathe, Stretch, … Strike? Can employees engage in a concerted stretching exercise during work hours?  The NLRB recently said yes. The NLRA allows employees to engage in demonstrations to support their union, including demonstrations in support of contract proposals.  However, the law does not protect employees from engaging in work slowdowns or other refusals to perform work.  Strikes are protected, but they generally are an “all or nothing” proposition.  The general rule is that employees must completely stop work and leave the premises to enjoy... More
  • NLRB General Counsel Memo Provides Guidance On The Status Of Employer Rules In December 2017, the NLRB issued a decision in Boeing Corp., which altered the Board’s test concerning the validity of workplace rules. To further clarify the decision and current state of the law, the NLRB’s General Counsel issued a Memo (GC Memo 18-04) concerning the impact of the decision. GC Memo 18-04 expands upon the placement of certain rules into the three categories outlined in the Boeing decision. For background, the test formerly employed by the Board asked whether an employee “would reasonably construe”... More
  • “Whore Board” Is Protected Employee Speech, NLRB Finds. In a recent decision, a Board panel majority found that an employee was unlawfully fired for writing “whore board” on an overtime sign-up sheet at work.  This decision highlights the expansive nature of employee activity protected by the NLRA and the limited value that the NLRB can sometimes place on employer property rights. In this case, the employer instituted a new overtime policy, which, unlike the old policy, included discipline for failure to work an overtime shift.  As with the old... More
  • The Hy-Brand Saga Ends, But The NLRB’s Joint Employer Journey Continues On June 6, 2018, the NLRB issued two Orders that put an end to the Hy-Brand case, which briefly changed the NLRB’s standard for determining whether two employers were jointly responsible for violations of federal labor law and collective bargaining. As we explained in previous posts (links), in December 2017 the Hy-Brand Board returned the joint employer standard back to require “direct and immediate” control over the terms and conditions of employment that existed prior to the Board’s 2014 decision in... More