Blogs

We are proud to offer a selection of blogs covering different areas of labor and employment law, as well as geographies. Please see below for a brief description of each, or jump to our recent posts.

California Employment Law Blog

Labor and Employment attorneys Keith Chrestionson, Alex Hernaez, Jeff Polsky and Nancy Yaffe discuss a wide variety of legal challenges faced by California employers, including class actions, wage and hour, overtime, discrimination, harassment and privacy issues.
View the California Employment Law Blog

Employment Discrimination Report Blog

The firm's Employment Discrimination Report covers all aspects of employment discrimination and harassment, including new court decisions and legislation, compliance, best practices, interesting trends in workplace relations and employment-related issues affecting employers.
View the Employment Discrimination Report Blog

Immigration View Blog

U.S. immigration law comprises a system of highly complex, intricate, many-layered statutes, regulations, informal agency materials and policies which are often influenced by the current political climate. Anyone attempting to navigate this system needs attorneys well versed in the nuances of this multifaceted process. Join our experienced immigration bloggers as they provide regular updates for employers on the full gamut of immigration issues ranging from hiring, compliance and employment best practices to the latest developments in visa news and coverage of significant immigration-related decisions, as well as practical advice to ease the immigration process.
View the Immigration View Blog

Management & Labor Report

Management & Labor Report is a blog that focuses on trends and developments in labor law. The primary focus is 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.
View the Management & Labor Report Blog

Wage & Hour — Developments & Highlights Blog

Mark Tabakman lends his more than 20 years of experience advising clients throughout the country on all aspects of labor relations and employment law, and development of corporate employment policies to Fox's Wage & Hour — Developments & Highlights blog. Join Mark as he discusses issues dealing with class actions, independent contractors, and exemptions.
View the Wage & Hour — Developments & Highlights Blog

Recent Blog Posts

  • H-1B Electronic Registration Process Completed Today USCIS announced it has received enough electronic registrations during the initial period to reach the FY2021 H-1B cap.  USCIS conducted a lottery by randomly selecting from the registrations properly submitted.  USCIS will notify petitioners with registrations selected no later than March 31, 2020.  Petitioners will be able to file an H-1B cap subject petition for the beneficiary named in the selected registration. Registrants online accounts are being updated and will show one of the following statuses for each registration: Submitted: The... More
  • FLSA Telecommuting Issues Can Lead to Abuse: Employers Beware! I am getting deluged with inquiries from clients, some very agitated, about what they should do, or can do, vis-à-vis their non-exempt work forces and how these folks can be properly paid, but at the same time remain compliant with the Fair Labor Standards Act. As a basic premise, employees must receive at least the applicable minimum wage (in whatever State the employee works) for all hours worked and then must receive overtime for all hours exceeding forty (40) in... More
  • Initial FY2021 H-1B Cap Lottery Registration Closed; Winners to be Notified by March 31, 2020 Last Friday, March 20th at 12:00 noon US Eastern Time, USCIS closed the initial registration period for the Fiscal Year 2021 (FY2021) H-1B cap lottery. In order to be considered in the initial selection process for the H-1B cap lottery, prospective H-1B petitioners had to successfully register their prospective H-1B employees by the Friday deadline. If as expected USCIS received more electronic lottery registrations than the numerical limitation of 65,000 and the master’s cap exemption of 20,000, the agency will randomly... More
  • Breaking News: USCIS Announces Temporary Suspension of NEW requests for Premium Processing for All I-129 and I-140 Petitions Due to the Coronavirus Pandemic March 20, 2020: U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19). Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing.  USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria.  However, it will not send notices using... More
  • Breaking News: DHS Announces Flexibility in Requirements Related to Form I-9 Compliance and Automatic Extension of time to respond to a Notice of Inspection (NOI) Department of Homeland Security, Immigration and Customs Enforcement Announcement of March 20, 2020:  Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).  Employers with employees taking physical proximity precautions due to COVID-19 will not be required to... More
  • Immigration Agencies Response to the COVID-19/Coronavirus Pandemic In an effort to allay concerns and to enable our clients to adjust plans relevant to nonimmigrant or immigrant visa status in light of the current unprecedented situation, we are providing you with this update regarding current operations of relevant government agencies and any special notifications, dispensations or waivers granted due to the COVID-19 pandemic.  Please note that this may not be a comprehensive list.  If you have concerns about your particular situation, please contact us at [email protected]  We are... More
  • AILA Letter to DHS regarding Form I-9 Compliance during COVID-19 Public Health Emergency On March 16, 2020, the American Immigration Lawyers Association (AILA) sent a letter to the Acting Secretary of the U.S. Department of Homeland Security seeking guidance regarding employer I-9 Employment Eligibility Verification requirements during the Coronavirus (COVID-19) public health emergency. In the letter, AILA requested guidance regarding “Form I-9 verification and reverification, E-Verify and compliance requirements for U.S. businesses throughout the remainder of [the] national emergency”.  Of mounting concern among employers is the requirement that the I-9 process must be completed... More
  • Cutting Exempt Employee Salaries for Slowdowns Resulting From Virus Is Legal—But Be Very Careful! The Corona Virus scare is causing employers to lay people off and reduce their hours. For non-exempt, hourly people this is fairly easy, from a legal perspective, because if non-exempt people do not work, they do not get paid. The case is tougher for exempt workers. The FLSA requires employers to pay exempt employees at least $684.00 per week in salary, and that salary cannot be reduced (in most instances) by deductions. However, under the FLSA, an employer can prospectively... More
  • Update: USCIS Announces Temporary Office Closure Related to COVID-19 ** As of March 25, 2020, USCIS has updated its temporary closures described below and has extended the suspension of in-person services to April 7, 2020. ** In an effort to slow the spread of COVID-19, USCIS announced temporary office closures effective March 18, 2020.  USCIS is suspending all in-person services at its field offices, asylum offices, and Application Support Centers (ASC) until at least April 1, 2020.   The suspension includes all in-person services at USCIS field offices across the United... More
  • Temporary Suspension of Premium Processing for FY2021 Cap-Subject Petitions United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing for all FY 2021 cap-subject petitions. USCIS expects this suspension to last until no later than May 27, 2020 for FY 2021 cap-subject petitions requesting a change of status from F-1 nonimmigrant status. USCIS predicts that the earliest date the agency will resume premium processing for all other cap-subject H-1B petitions is June 29, 2020. During this time, USCIS will continue to accept premium processing requests for H-1B... More
  • Health Care Services Related to COVID-19 and USCIS’s Public Charge Rule By Catherine V. Wadhwani and Robert S. Whitehill Without fanfare, U.S. Citizenship and Immigration Services (USCIS) recently updated its website with an Alert https://www.uscis.gov/greencard/public-charge relating to its Public Charge requirements in the context of the Novel Corona Virus Disease (COVID-19) pandemic.  As concerns about the spread of COVID-19 in the U.S. increase, USCIS recognized that those grappling to fully understand its recent Public Charge Rule may be so concerned about the impact on their immigration status that they may refrain from... More
  • COVID-19 Employment Law Issues (Friday the 13th Edition) One of my favorite things about California employment law is that it changes constantly. But this coronavirus situation changes minute to minute, and that’s hard to keep up with. Here are resources to help you stay current. Here’s a link to various sites that contain information – some by Fox Rothschild LLP, some by government agencies. One of the resources you’ll find there is a list of answers to many of the questions employers have. Another is a link to... More
  • Coronavirus and Foreign Student Considerations The recent wave of public and private university and college closings due to the COVID-19 (Coronavirus) is only going to increase throughout the United States.    Many colleges and universities have already moved to remote instruction with all classes online.   The cancellation of all remaining spring and winter sports championships by the NCAA is further evidence that schools are taking the outbreak seriously and not holding events that can encourage the spread of the pandemic.    Classes and events... More
  • Staffing Company Cannot Avoid FLSA Liability For Doctored Time Records by Blaming Its Agent What gets a lot of employers into trouble is the failure to keep accurate records. Or worse, the actual falsification of records or knowingly keeping and maintaining inaccurate records. Nothing will cause the DOL to come down harder on an employer and for the courts to back up the agency. A recent example of this is a case where the employer tried to put all of the blame on an allegedly low level employee and avoid liability for this fairly... More
  • NJ Issues Report, Recommendations on Stopping Sexual Harassment The New Jersey Division of Civil Rights has issued a report on sexual harassment, but what does it mean for workplaces in the state? The report comes as a result of three public hearings held in 2019 by the Division of Civil Rights in partnership with the New Jersey Coalition Against Sexual Assault and the Rutgers Law School International Human Rights Clinic. The goal of the project was to hear from New Jerseyans about their experiences in the workplace with sexual... More
  • Free Webinar on Coronavirus Issues in the Workplace With the rapidly evolving landscape, new issues arise daily for employers.  Join our Labor & Employment and Hospitality teams, on March 12th at 12pm pacific time, for a Q&A format webinar on addressing COVID-19 concerns at work.  While the focus will be on customer-facing industries such as hospitality and retail, most guidance is applicable to all.  Register here and we look forward to you joining us.... More
  • Labor Contract Preemption Defense Cannot Kill Wage Suit Because No Interpretation of Contract Required I have often blogged about the need for defense lawyers to look for a labor law preemption defense when a wage hour action, single or FLSA collective action, is lodged.  If the preemption argument succeeds, it is a magic bullet that makes the case totally go away.  There has to be, however, some direct connection between the wage claim made and the labor contract.  That is often easier said than done, as a recent California case shows where the Judge... More
  • Novel Workplace Issues Addressing Novel Coronavirus With cases of COVID-19, or novel Coronavirus, at 87 and rising in the United States, communities are bracing for widespread impact.  Here are some issues for consideration in managing wellness (and fear) in the workplace: Protecting Employees  Reduce or cancel non-essential business travel (especially international).  Monitor relevant travel advisories and consider work-from-home arrangements upon return from travel.  Employees may refuse to travel under OSHA  in certain circumstances. Limit attendance at large conferences, if not already canceled. Limit workplace visitors, instead utilizing remote meetings or... More
  • For Employers Facing a Discrimination Claim, Being Wrong Can Also Mean Being Right (or, at Least, Being Nondiscriminatory). What happens if an employer takes adverse action against an employee based on a legitimate, nondiscriminatory reason that later turns out to be wrong? Suppose, for example, an employer fires an employee based on a genuine belief that the employee violated the employer’s policies, but it turns out that, in fact, the employee did not. Is the employer now susceptible to a Title VII discrimination claim based on its mistaken, yet honest, belief? According to a recent opinion from the... More
  • Independent Contractor Battles Fought on Many Fronts, Though Same Issue Persists The significance of the issue of independent contractor cannot be underestimated these days and this battle is being waged on any number of fronts, including when an entity may or may not enter a litigation as an intervener.  In a recent case, a New Jersey real estate trade association has been denied to enter an independent contractor class action lawsuit because it cannot supposedly show the ultimate decision in the case will impact the entire real estate industry.  The case... More
  • Yes, Waiting in Line to Exit Through Security is Hours Worked A recent ruling confirmed that the time an employee spends waiting in line for a security check is considered “hours worked” in California and must be paid.  The California Supreme Court ruling applies even though the employees choose to bring in bags to work.  Put another way, the employees could skip the line by not bringing a bag, a purse, or even a phone to work. This ruling is not surprising.  Clients from out of state are often surprised by California’s... More
  • Appeals Court Rejects Disability Discrimination Claim of Employee with Supervisor-Induced Stress and Migraines When an employee requests an accommodation or asserts a claim under the Americans with Disabilities Act, an employer’s second question—right after “Are we even covered by the ADA?”—will likely be:  “Did/does the employee have a disability?” (Claims from employees who are merely perceived as disabled are a topic for another day.)  The definition of a disability has two parts.  First, it must be “a physical or mental impairment” and, second, it must “substantially limit one or more major life activities.” ... More
  • Flushed Down the Toilet: Porta Potty Company Settles FLSA Overtime Collective Action Employers often do not like to pay overtime, although they must, and they sometimes come up with creative arrangements not to do so.  That is fine, until an employee, often one who has been fired, files a lawsuit. Then, the company must resolve the lawsuit and fix the “problem” going forward.  A recent example of this model just occurred involving a portable toilet company, involving almost 1,300 toilet technicians. The case is entitled Vargas v. Howard and was filed in... More
  • Whistleblower Protections: Don’t Fire the Messenger! One of the hottest issues in employment law is Whistleblowing. Did you ever wonder why the President can fire people who testify against him, but a California employer would be sued in a hot minute for doing so? Or why certain high profile figures can be “handsy” or “flirty” (or way more) and get away with it, but others are being “outed” by victims with time-barred claims, crushed with job loss, litigation (and maybe even jail time) in the #MeToo era? And did... More
  • Is “OK, Boomer” OK? In January, Supreme Court Chief Justice John Roberts drew considerable media attention by asking, during the oral argument of an age discrimination case, Babb v. Wilkie, a question about the relevance of the phrase “OK, Boomer.”  A Google search of “Chief Justice OK Boomer” will reveal articles from almost every serious media outlet putting their spin on the remark.  Most commentators have portrayed the conservative Chief Justice as suggesting it would be silly to take today’s trendy phrase from popular... More
  • Flimsy Affidavit From Named Plaintiff Insufficient to Secure Conditional Certification in FLSA Collective Action: A Case for Sanity! It seems that plaintiffs (and their lawyers) think that all they have to do to get conditional certification is throw up a flimsy Affidavit from the named plaintiff and the Court will hand them conditional certification, like it is giving out candy.  Fortunately, in the District of New Jersey that is not the case, as evidenced by a very recent case.  The case is entitled Ding v. Baumgart Restaurant Inc. and was filed in the District of New Jersey.  Herein,... More
  • Virginia: the Next State to Protect LGBTQ Employees from Discrimination? If you’re a regular reader of our blog, you probably know that the question of whether federal law prohibits employment discrimination against employees on the basis of their sexual orientation or gender identity remains open, which the Supreme Court may (or may not) resolve this year. While the EEOC  continues to move forward in processing charges that allege discrimination on these bases, the current limbo in federal law has opened the door for state action. Some states, like Pennsylvania and Michigan,... More
  • USDOL Opinion Letters Drawing Fire From Courts, But I Remain a True Believer As you know, I am a big believer in and proponent of using USDOL Opinion Letters, both in advising clients, understanding the agency’s view, and, more importantly, urging them on courts as good authority for the premise I may be arguing.  Well, the fact that a federal court has just refused to accept the agency’s view on a particular topic (i.e. whether sleeping time in their sleeper berths is working time) indicates that, perhaps, these Opinion Letters might not be... More
  • Court Gives California Independent Contractor Law AB-5 The Green Light Gig economy giants Uber and Postmates failed to convince U.S. District Judge Dolly Gee that she should grant an injunction to prevent enforcement of AB-5.  While seeking to halt enforcement of AB-5, the companies concurrently contend that the law does not apply to their drivers.  In case you’re just tuning in, AB-5 creates a legal presumption that all workers in California should be employees unless they pass a stringent ABC test or fall into a detailed exemption, which you can... More
  • Judge Explains Reasons for Banning Enforcement of AB 51 and Preserving Workplace Arbitration in California AB 51, which restricts workplace arbitration, was scheduled to take effect on January 1, 2020. On December 30, 2019, US District Judge Kimberly Mueller granted a temporary restraining order to prevent the legislation from taking effect.  On January 31, 2020, she issued a preliminary injunction extending the ban, and promised to explain her reasoning in more detail later. On February 6, 2020, she provided that more detailed explanation. AB 51 made it unlawful (even criminal) for anyone to require an applicant... More
  • New Jersey Bans Natural Hair Discrimination In December, 2019, New Jersey enacted the Create a Respectful and Open Workspace for Natural Hair Act, or the CROWN Act. The CROWN act amends the New Jersey Law Against Discrimination (LAD) to state that “race,” as defined by the LAD, includes “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” The CROWN Act defines “protective hairstyles,” in turn, as including but not being limited to braids, locks, and twists. In other words,... More
  • NLRB modifies rule concerning workplace changes For many years, the NLRB has required evidence of a “clear and unmistakable” waiver by unions of the duty to bargain with management over workplace changes.  Now, after prodding from some Courts of Appeals, the NLRB has changed its standard: employer changes to workplace conditions will only require evidence that the change is “covered” by a collective bargaining agreement.  This means that the NLRB will not require hyper-specific language or other types of evidence to find a bargaining waiver on... More
  • Court Grants Injunction to Stop AB 51 — Mandatory Arbitration Still OK in CA Here is the latest in a series of blogs about AB 51, the California bill that threatened mandatory arbitration.  Thankfully, the District Court granted the preliminary injunction in full (not just temporarily), and stopped AB 51 from being enforced.  That means that as long as the arbitration agreement is governed by the FAA (Federal Arbitration Act), it can still be mandatory.  The Court promised a more detailed ruling with its analysis, which we will post when available. Bottomline, California employers can... More
  • EEOC Releases 2019 Enforcement Data: Retaliation Charges Lead the Way The US Equal Employment Opportunity Commission has released its annual enforcement and litigation statistics for fiscal year 2019.  For fiscal year 2019, retaliation,  disability discrimination, race discrimination, and sex discrimination charges continue to constitute the most frequently filed types of charges. One key takeaway:  the EEOC received 39,110 charges alleging retaliation, which represented 53.8% of all filed charges. This reality is critical for employers to note in setting workplace standards and investigating workplace complaints, as charges of discrimination or harassment frequently... More
  • FLSA Collective Action Defeated in One Fell Swoop by Exemption Defense: Way to Go! I love it when the employer wins an exemption case because the deck is so often stacked against the employer on these kinds of cases. This is especially so when the action is a collective one under the FLSA. In this instance, a RN who was employed as a health insurance claims consultant was found to be exempt as a professional employee because she utilized her specialized knowledge when she performed her duties, even though they were not hands-on patient... More
  • The New USDOL Joint Employer Test Makes It Easier to Avoid Such Status The USDOL has finalized its new rule concerning when two entities can be deemed a joint employer and therefore liable for each other’s wage violations.  Under the Obama administration, the DOL sought to expand the reach of this doctrine and issued a “white paper” asserting that indicated that businesses had to be completely “disassociated” to not perhaps be joint employers. The Trump DOL rescinded this position in 2017 and engaged in rulemaking.  Now, there will be a new test, reliant on... More
  • A Chart of All of California’s State and City Paid Sick Leave Laws It’s hard work keeping up with all nine of California’s state and municipal Paid Sick Leave Laws. But Tyreen Torner has done more than kept up. She’s compiled all of their various requirements in this handy chart. Maybe you prefer looking up the requirements yourself, which is fine. We’re not here to judge. However, if you’re looking for an easy tool to determine whether the various requirements apply, we’ve got you covered.... More
  • Court Further Postpones AB 51 (Restricting Workplace Arbitration) From Taking Effect AB 51, which restricts workplace arbitration, was scheduled to take effect on January 1, 2020. On December 30, 2019, US District Judge Kimberly Mueller granted a temporary restraining order to prevent the legislation from taking effect. She did so in response to a lawsuit by the California Chamber of Commerce and other employer groups arguing that the legislation was unconstitutional. At a hearing on January 10, 2020, Judge Mueller extended the injunction until January 31, 2020 to allow further briefing... More
  • NLRB Makes Significant Changes to “Quickie” Election Rule The National Labor Relations Board recently scaled back the 2015 “quickie” election rule, which had sped up the timelines for conducting union elections.  Speeding up the process provided an advantage to unions by setting short deadlines that often ambushed employers, leaving them with limited time to react to the election petition.  The new rule offers welcome relief to employers and adds more time to address pre-election issues. The new rule modifies the 2015 “quickie” election rule in the following significant ways: Pre-Election... More
  • NLRB may revisit the limits of profane employee speech protected by federal labor law While it may come as a surprise, the NLRB has long held that employees are sometimes entitled to use profane language while engaging in labor activities.  In recent years, the Board has found that employee speech was protected where: An employee posted online that his supervisor was a “NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!!” while also noting an upcoming union election. An employee used racist language while on a picket... More
  • NY Outlaws Discrimination Based on Employee Reproductive Health Decisions With a lack of legislative action in Congress on employment discrimination issues, state and local governments continue to expand employee protections. A newly enacted (and immediately effective) law in the State of New York prohibits employers from discriminating or retaliating against an employee on the basis of an employee’s reproductive health decision making (or that of an employee’s dependent). The new law does not comprehensively define “reproductive health decision making” but states that it includes, but is not limited to, a decision... More
  • NJ Issues Guidance on Race Discrimination Based on Hairstyle Recently, several jurisdictions have stated that discriminating against an employee on the basis of the employee’s hairstyle, where the hairstyle is closely associated with race, constitutes race discrimination. The New Jersey Division of Civil Rights has clarified its approach to this issue, recently issuing guidance on how it will apply the New Jersey Law Against Discrimination’s (the “LAD”) to matters of race discrimination based on hairstyle. Specifically, the Division states: …the LAD’s prohibition on discrimination based on race encompasses discrimination that... More
  • Supreme Court Hears Argument in LGBT Discrimination Cases: What’s Next? As regular readers of our blog will already know, the issue of whether Title VII prohibits employment discrimination based on an employee’s sexual orientation or gender identity has been a hot topic in federal litigation for several years. Our blog has regularly covered these developments and often expressed that this question will likely require clarification from the Supreme Court. Earlier this month, the Supreme Court heard oral arguments on three cases raising this question.  Two of the three cases involve employees being... More
  • 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
  • New Jersey Employers: The Minimum Wage Will Eventually Rise to $15 per hour by 2024 On Monday, February 4, Governor Phil Murphy made good on a campaign promise and signed into law a new bill (A-15) that will raise the State’s minimum wage to $15 per hour by 2024. This hike in minimum wage, however, will not happen immediately and increases will be phased in over time. Currently, the minimum wage rate in New Jersey is $8.85 per hour. Under the new law, this rate will jump to $10 per hour on July 1, 2019 and... 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