Escape Clause in Mandatory Arbitration Agreement Carries the Day for Employer in NLRB's Unfair Labor Practice Analysis

Historically, there has been a "push and pull" between the National Labor Relations Board (Board) and employers over mandatory arbitration agreements and class action waivers. Although most of the disputes have been resolved by recent SCOTUS jurisprudence, the Board remains concerned with restrictions in arbitration agreements that limit the ability of employees to file unfair labor practice charges before the Board if employees believe their Section 7 rights have been violated. More ›

NLRB Announces Final Joint Employer Rule

Following in the footsteps of the U.S. Department of Labor, the National Labor Relations Board (NLRB) announced its Final Rule regarding joint employment. While the NLRB rarely engages in rulemaking, it deemed it necessary in this instance to provide clarity and predictability regarding joint employment. Effective April 27, 2020, the Final Rule rescinds the current test which went into effect in 2015 and reverts back to the prior analysis. This impacts all employers, particularly in the context of collective bargaining, staffing companies, and franchisers. More ›

D.C. Circuit Instructs NLRB to Revisit its Approach to Balancing Section 7 Rights with Other Employer Obligations

The Court of Appeals for the D.C. Circuit recently remanded a decision of the National Labor Relations Board (the "Board"), thus compelling the Board to revisit and clarify its position on the scope of Section 7 protection for speech or conduct which may subject an employer to liability under other statutes, including Title VII. The D.C. Circuit concluded that the Board failed to consider key arguments raised by the employer, namely, the conflict between the Board's interpretation of the National Labor Relations Act (NLRA) and an employer's obligation to provide a workplace free of unlawful harassment under state and federal equal employment opportunity laws. More ›

NLRB Restricts Employee Use of Employer-Provided Email for Section 7 Purposes

Earlier this week, the National Labor Relations Board ("Board") issued an important decision, returning to its prior precedent with respect to employee use of employer-provided email for Section 7 purposes. In Caesars Entertainment and International Union of Painters and Allied Trades, District Council, the Board overruled the Obama-era decision of Purple Communications, Inc. and returned to the rationale the Board had adopted during the George W. Bush era in Register Guard.

The Board held that the Purple Communications decision was out of line with its prior precedent and impermissibly discounted employers' property rights with respect to their IT resources while overstating the importance of those resources to Section 7 activity. In returning to the Register Guard holding, the Board recognized and created an exception to the Register Guard rule in cases where an employer's email system is the only reasonable means for employees to communicate with one another. More ›

NLRB Clarifies "Wright Line" Test

When motive is at issue in resolving certain unfair labor practices under the National Labor Relations Act (NLRA), the National Labor Relations Board (the Board) utilizes the burden-shifting framework established under Wright Line to make a determination. In Tschiggfrie Properties, Ltd., the Board took the opportunity to clarify the initial burden of proof required by the General Counsel in light of what it perceived to be confusion over a number of its recent decisions, as well as criticism from a number of federal courts, including, most recently, the Eighth Circuit. More ›

EEOC Petitions the NLRB to Change Legal Test for Considering Whether Employee Racial Outbursts are Protected NLRA Activity

In response to an amicus brief submitted by the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB) has agreed to review General Motors LLC, a case which reveals a tension between the National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act of 1964 regarding employee racial outbursts during union activity. The EEOC requested the NLRB to change its test for determining whether or not an employee outburst is protected by the NLRA when it includes racially-charged language. The NLRB's decision could provide employers with more flexibility in disciplining employees for racial misconduct during union activity. More ›

NLRB to Propose Rule Extending Employer Property Rights

Several recent decisions by the National Labor Relations Board (NLRB) have analyzed the balance between employer property rights and union organization rights under the National Labor Relations Act (NLRA). These decisions appear to shift the balance in favor of employers. It is anticipated that the NLRB will propose a rule in the near future clarifying employer property rights in light of the recent decisions that have significantly modified past precedent. More ›

NLRB Provides Section 7 Guidance to Employers Regarding Drafting of Arbitration Agreements

There is an ongoing tension between the National Labor Relations Board (the "Board") and employers who seek to expand the use of an arbitration forum to resolve employment disputes. The U.S. Supreme Court has continued to endorse the idea that arbitration is both an important part of national labor policy and a reasonable alternative to litigation in court for employment-related disputes. As the Board issues new opinions and interprets guidance from the Supreme Court, employers are in a position to gain better insight and avoid problematic drafting mistakes in arbitration agreements. More ›

The Suggestion Box: Useful Management Tool or Unlawful Solicitation of Grievances

T-Mobile USA, Inc. ("T-Mobile") in 2015 created T-Voice, a nationwide program through which customer service representatives could submit "pain points" regarding certain aspects of the job, including ideas to improve customer service. The majority of these pain points addressed customer service issues, such as billing, fraud procedures, access to computer programs, and at times, the type of music customers were subjected to while on hold. Some of the suggestions have led to action being taken by T-Mobile, like requests for device-charging stations, which resulted in T-Mobile installing three stations. More ›

NLRB Proposes Rule that Would Deny Undergraduate and Graduate Students the Right to Unionize

The National Labor Relations Board (NLRB) has proposed a new rule which would exclude undergraduate and graduate students from coverage under Section 2(3) of the National Labor Relations Act (NLRA). Specifically, students who perform study-related services in return for financial compensation at private colleges and universities would not be able to collectively organize as employees. The proposed rule is subject to a sixty-day comment period. More ›