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NLRB Changes Course on Mandatory Arbitration Agreements

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August 14, 2019

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In 2018, in Epic Systems Corp. v. Lewis, the U.S. Supreme Court stated that employers may require employees to sign arbitration agreements with class action waivers. Recently, the National Labor Relations Board (NLRB) took the Epic decision even further.

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Arbitration Agreements Must Exempt NLRA Claims According to the NLRB

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June 18, 2019

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In Prime Healthcare, the National Labor Relations Board (NLRB) stated that an arbitration agreement that did not expressly exclude claims filed with the NLRB was invalid. There, the arbitration agreement simply required that all claims between the employer and employee be subject to arbitration. There were a few exceptions identified for workers’ compensation and unemployment claims, but not for National Labor Relations Act (NLRA) claims processed through the NLRB.

The Board stated that although the arbitration agreement did not expressly state that NLRB claims are subject to the arbitration agreement, because it called for “all claims” to be arbitrated, with limited exceptions, it restricted employees’ access to the NLRB and its processes. The Board ordered the employer to rescind the unlawful agreement and provide notice to current and former employees.

Employers should ensure that arbitration agreements expressly exclude NLRB claims. A general disclaimer excluding anything that would interfere with employee rights may not be sufficient.

Action Items

  1. Have arbitration agreements reviewed with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

NLRB Clarifies Restrictions on Social Media Use, Confidentiality, and Employee Conduct

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August 30, 2018

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On June 14, 2019, the National Labor Relations Board (NLRB) released an Advice Memorandum in Coastal Industries, Inc. dba Coastal Shower Doors issued on August 30, 2018. The Board applied the 3-tiered Boeing standard to several employer policies. Specifically, Category 1 policies are lawful; Category 2 policies require individual scrutiny; and Category 3 policies are unlawful. The following is a summary of key portions of the NLRB’s review of confidentiality, conduct, and social media policies.

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Union Organizers Can No Longer Use the Public Spaces of an Employer’s Premises

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June 14, 2019

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In UPMC, the National Labor Relations Board (NLRB) eliminated the “public space” rule that allowed nonemployee union representatives to use the public areas of the property for organizing activities. However, public spaces may be used if the union has no other reasonable way of communicating with employees or the employer allows similar groups access to its public spaces.

There, union organizers met with employees in the employer’s public cafeteria and displayed union paraphernalia. Following a confrontation, police escorted the representatives from the property. The employer equally expelled other nonemployee individuals soliciting for any number of reasons.

Moving forward, employers may maintain no-solicitation policies, provided that unions have other ways of communicating with employees and the policy is consistently enforced. Employers should implement standard procedures for enforcing no-solicitation policies to ensure consistent treatment of nonemployees.

Action Items

  1. Have no-solicitation policies for public areas reviewed for consistency with this ruling.
  2. Have applicable staff trained on approved uses of employer public spaces for consistent application of the policy.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

NLRB: Employees Can Discuss Discipline

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April 15, 2019

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The National Labor Relations Board (NLRB) recently released an Advice Memorandum dated August 7, 2018, addressing policies prohibiting employees from publicly disparaging the employer. Specifically, a policy that prohibits employees from “engaging in conduct that could adversely affect [the employer’s] business or reputation,” including “publicly criticizing [the employer], its management, or its employees,” was a violation of the National Labor Relations Act (NLRA), because the impact on employees’ Section 7 rights outweighed the employer’s business justification for the rule. This was a blanket policy that was not narrowly tailored to avoid infringing on employee rights, i.e., “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

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NLRB Update: Dress Code, Cell Phones, and Media Statements, Oh My!

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March 14, 2019

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On March 14, 2019, the National Labor Relations Board (NLRB) released an advice memorandum dated July 31, 2018, providing insight on numerous topics.

  • Dress code policy: The NLRB approved of a policy that prohibited “[a]ny items of apparel with inappropriate commercial advertising or insignia.” “Inappropriate” only referred to images that are inconsistent with a professional, business-like appearance, and did not prohibit employees from exercising rights protected by the National Labor Relations Act (NLRA).
  • Personal cell phone use: A policy that prohibits personal cell phone use on non-working time during working hours violates the NLRA, because employees have a right to communicate with each other during breaks using means that are not monitored by the employer. An employer’s legitimate business interests in preventing distractions, lost time, and lost productivity occur during work time.
  • Confidential employee information: Employers may restrict employees who have access to employee confidential information as part of their job from disclosing such information. The limitation is specific and within an employer’s legitimate business interests, and does not prohibit employees from sharing their own private information.
  • Media communications: Employers may restrict media communications to designated representatives concerning statements that may be interpreted as an official employer position or speaking on the employer’s behalf, provided that employees are not prohibited from communicating with the media about workplace matters.

Action Items

  1. Review the advice memorandum here.
  2. Have policies reviewed for compliance.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

NLRB Changes Independent Contractor Test Again

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January 25, 2019

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The National Labor Relations Board (NLRB) recently issued a board decision in SuperShuttle DFW, Inc., stating a return to the common law “entrepreneurial opportunity” analysis for independent contractors and rejecting the previous FedEx Home Delivery “economic realities” test. The common law analysis looks at a variety of factors, with no one factor being decisive: (1) extent of control, (2) engagement in a distinct occupation or business, (3) whether the work in is usually done with or without supervision from the employer, (4) skill required, (5) who supplies the tools and place of work, (6) length of time employed, (7) payment by time or by job, (8) whether the work is part of the regular business of the employer, (9) whether there is a “master and servant” relationship, and (10) whether the worker is or is not in business.

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D.C. Circuit: Browning-Ferris Joint-Employer Standard Upheld

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December 28, 2018

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In Browning-Ferris Industries v. NLRB, the D.C. Circuit Court stated that the National Labor Relations Board’s (NLRB) standards of “right to control” and “indirect control” are appropriate factors to determine joint-employer status on a fact-based, case-by-case basis.

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October Updates

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This Short List addresses the following topics:
  1. U.S. Department of Labor Issues Updated FMLA Forms
  2. EEO-1 Reporting Deadline Still March 31st
  3. NLRB: E-Verify Enrollment is a Mandatory Subject of Bargaining
  4. IRS Updates Paid Family Leave Tax Credit
  5. Sixth Circuit: Educational Institution’s Investigation Procedures Challenged in Title IX Case
  6. Seventh Circuit: Potential Back Pay in Hostile Work Environment Claims
  7. Ninth Circuit Affirms DOL Guidance on “20% Rule” for Tipped Employees
  8. California: IMPORTANT – Update on How Split Shifts Are Paid
  9. San Francisco, CA: Update Fair Chance Ordinance Notice/Poster
  10. New York: Home Care Workers’ “13-Hour Rule” is Invalid

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NLRB: Issues New Guidance on Employee Handbook Rules

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June 6, 2018

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On June 6, 2018, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued “Guidance on Handbook Rules Post-Boeing.” The new Guidance elaborates on a December 14, 2017 announcement that sets forth three categories of rules to help define when an employer’s policies violate the National Labor Relations Act (“NLRA”).