Browning-Ferris reversal calls end to uncertainty on joint employment

December 15, 2017 - by: Tammy Binford 0 COMMENTS

Employers confused over what constitutes joint employment have seen the confusion largely cleared up, thanks to a National Labor Relations Board (NLRB) decision issued December 14.

The 3-2 decision overrules the Browning-Ferris decision, which broadened what could be considered a joint employment relationship. Under the Browning-Ferris decision, employers that had even indirect control over employees of another employer could be considered joint employers. The party-line decision reinstates the old standard that was used for decades before the 2015 Browning-Ferris decision issued by the Obama-era NLRB.

“I think the most important aspect of the case is that it really ends the uncertainty and unpredictability that Browning-Ferris created because the prior decision never really gave anybody a clear understanding of indirect control,” Burton J. Fishman, an attorney with Fortney & Scott, LLC, in Washington, D.C., and a contributor to Federal Employment Law Insider, said of the new ruling.

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New General Counsel expected to set new probusiness agenda for NLRB

November 09, 2017 - by: Tammy Binford 0 COMMENTS

A much more business-friendly atmosphere is expected at the National Labor Relations Board (NLRB) now that the U.S. Senate has confirmed Peter B. Robb as the Board’s General Counsel.

Robb, a management-side attorney with a Vermont law firm, won confirmation on a 49-46 party-line vote on November 8. He is President Donald Trump’s choice to replace Richard F. Griffin Jr., whose term as General Counsel expired on October 31. Griffin, nominated by President Barack Obama, began his tenure on November 4, 2013. Before Griffin, another Democratic nominee, Lafe Solomon, held the post.

With Robb on board as General Counsel, the five-member NLRB not only has a Republican majority of members, but it also has a Republican “quarterback,” says Kevin C. McCormick, chair of the labor and employment section of Whiteford, Taylor & Preston, L.L.P., in Baltimore, Maryland, and editor of Maryland Employment Law Letter. As General Counsel, Robb will set the tone for the NLRB since the General Counsel is responsible for selecting cases the Board will hear.

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More probusiness NLRB on the way as Emanuel wins confirmation

September 25, 2017 - by: Tammy Binford 0 COMMENTS

by Tammy Binford

As William Emanuel takes a seat on the National Labor Relations Board (NLRB), employers will see the panel going in a more probusiness and less union-friendly direction, Board watchers say, but it will take a while before cases come up to roll back recent decisions.

Emanuel, an attorney representing management in labor and employment matters, won confirmation by the Senate on September 25, giving the panel its first Republican majority in 10 years. Emanuel most recently practiced in the Los Angeles office of large management-side law firm Littler Mendelson.

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Miscimarra announcement called ‘great loss’ but ‘no reason to panic’

August 11, 2017 - by: Tammy Binford 0 COMMENTS

NLRB logoNational Labor Relations Board (NLRB) Chair Philip Miscimarra’s reported decision to leave the Board when his term expires on December 16 rather than allow himself to be considered for another term has probusiness Board watchers looking ahead and lamenting the loss of his contributions to NLRB decisions.

Kevin C. McCormick, an editor of Maryland Employment Law Letter and chair of the labor and employment section at Whiteford, Taylor & Preston L.L.P. in Baltimore, said he was surprised by the news. He called Miscimarra’s coming departure a “great loss” but “no reason to panic.”

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Emanuel nomination called chance to ‘rein in’ Obama-era NLRB

June 29, 2017 - by: Tammy Binford 0 COMMENTS

President Donald Trump’s latest pick for the National Labor Relations Board (NLRB) is another signal that a “reining in” of the panel is on the way, according to attorneys who keep a close watch on the Board.NLRB logo

On June 27, the White House announced that William J. Emanuel, an attorney with the large management-side law firm Littler Mendelson, will be nominated for the remainder of a term expiring on August 27, 2021.

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Supreme Court will consider class action waivers

January 20, 2017 - by: Kate McGovern Tornone 0 COMMENTS

The U.S. Supreme Court has agreed to hear a trio of wage and hour cases involving arbitration agreements that require workers to waive their right to pursue employment claims as a group.

In recent years, the validity of such waivers has divided federal appeals courts and drawn the attention of the National Labor Relations Board (NLRB). The Board has held several times that even though federal law allows employers to adopt mandatory arbitration agreements, the National Labor Relations Act (NLRA) grants workers the nonwaivable right to pursue claims on a class or collective basis.

The NLRB first reached that conclusion in 2012, holding that an employer’s arbitration agreement violated the NLRA because it required employees to agree to dispute claims individually. The employer appealed to the U.S. 5th Circuit Court of Appeals, which reversed the Board’s ruling. D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir., 2013).

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Columbia University decision latest NLRB victory for unions

August 24, 2016 - by: Tammy Binford 0 COMMENTS

Colombia university campus groundsThe National Labor Relations Board’s (NLRB) ruling that graduate student assistants at private colleges and universities are entitled to unionize is the latest Board action seen as a boon to union interests.

In a 3-1 decision issued on August 23, the Board ruled that graduate assistants at Columbia University are employees as well as students and may therefore be represented by a union. The ruling overturns the 2004 Brown University decision that determined that students working as teaching and research assistants should be considered students, not employees.

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New NLRB standard exposes more employers to union, other pressures

August 27, 2015 - by: Tammy Binford 0 COMMENTS

The National Labor Relations Board (NLRB) has adopted a new and broader standard of what constitutes joint employment by taking a stand that abandons a long-accepted standard in favor of one the Board claims better reflects “the current economic landscape.”

The new view of joint employment will bring major change not just to employers using staffing agencies but also to employers that operate on a franchise model or use various kinds of contingent workers, according to attorneys closely watching the Board’s actions.

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Fast-food strikes, NLRB policies take center stage

April 15, 2015 - by: Tammy Binford 1 COMMENTS

A day after the National Labor Relations Board’s (NLRB) controversial “quickie election” rule took effect, low-wage workers across the country took to the streets in an effort to boost their pay and join unions.

The Fight for $15 campaign, supported by the Service Employees International Union (SEIU), set April 15 as the date for the latest round of strikes that began in 2012. The protests include fast-food, homecare, airport, and other low-wage workers, including adjunct professors. Organizers reported that strikes were set for more than 230 cities and college campuses.

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NLRB says employees may use company computers for organizing activity

December 12, 2014 - by: HR Hero 4 COMMENTS

In perhaps one of its boldest moves, on December 11, the National Labor Relations Board (NLRB) overturned existing precedent and held that employees have the right to use their employer’s e-mail system for Section 7 concerted activity, including union-organizing activities, during nonbusiness hours. The decision obviously affects employers’ policies on employee e-mail use.

As background, the NLRB previously held in Register Guard, 351 NLRB 1110 (2007), that employers could bar employee use of their e-mail systems for nonbusiness purposes, including union or other communications protected under Section 7 of the National Labor Relations Act (NLRA), so long as the employer does so on a nondiscriminatory basis. In other words, the employer did not have to let employees use its e-mail system when it came to union business, including organizing campaigns.

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