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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”).

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Ninth Circuit: Tribal Casinos Must Obey NLRA

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April 26, 2018

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According to the Ninth Circuit Court of Appeals, even self-governed tribal land must obey the provisions of the National Labor Relations Act (“NLRA”).  In National Labor Relations Board v. Casino Pauma, the circuit court stated that the casino violated the NLRA by attempting to limit protected union activity.

Under the NLRA, employees have the right to engage in specified protected activities relating to improving or discussing working conditions, free of employer retaliation or adverse action.  At Casino Pauma, operated by the Pauma Band of Mission Indians and located on the tribe’s reservation, a number of casino workers began distributing union leaflets to customers entering the casino.  The employees were originally removed by security.  When they attempted to distribute leaflets some weeks later, the employees were disciplined.

The NLRB filed a complaint on behalf of the employees.  An administrative law judge found that the casino violated the NLRA by attempting to interfere with protected union activities, and the circuit court agreed, stating that the NLRA applies to tribal employers.

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  1. Review the full text of the case here.
  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.

© 2018 ManagEase

Keeping Up with the NLRB – The Browning-Ferris Joint-Employer Standard is Back on Top

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February 26, 2018

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Keeping up with the National Labor Relations Board (“NLRB”) can be a challenge. A mere two months after its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined a joint-employer relationship by looking at an employer’s actual control over employees, the NLRB vacated the Hy-Brand decision, causing the joint-employer standard to revert back to the August 2015 Browning-Ferris decision, which follows an indirect and reserved control standard for determining joint-employer status.

The reversal is the result of a technicality – a conflict of interest of one of the board members involved in the Hy-Brand decision. Prior to becoming an NLRB board member, William Emanuel worked for a private law firm that represented one of the companies involved in the Browning-Ferris case. When this relationship came to light, the NLRB issued an order vacating its Hy-Brand decision, stating that the board member should have been disqualified from participating in the ruling. For now, the Browning-Ferris standard is back on top. However, in light of the NLRB’s Memorandum 18-02, employers can likely expect to see continued changes on this and other topics. Stay tuned.

Action Items

  1. Review potential joint-employer relationships with legal counsel to minimize exposure.
  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.

© 2018 ManagEase

Fifth Circuit: Mandatory Class Action Waivers Do Not Violate the NLRA

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August 7, 2017

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In a recent decision, the Fifth Circuit reaffirmed its positions that mandatory class action waivers do not violate Section 7 of the National Labor Relations Act (“NLRA”). In Convergys Corp. v. NLRB, the Fifth Circuit stated that an employee’s right to a collective action is procedural, not substantive, and signing a waiver therefore did not violate any substantive rights under the NLRA.

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September Updates

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This Short List addresses the following topics:
  1. The Recent Federal Overtime Exemption Rule is Diminishing
  2. NLRB: More Examples of What is or isn’t Protected Concerted Activities on Facebook
  3. EEOC Must Reconsider Wellness Regulations
  4. Seventh Circuit: EEOC May Investigate Despite Right-to-Sue Letter and Issue of Judgment
  5. Arizona, Maryland, Wyoming:  Now Part of the E-Verify RIDE Program
  6. Berkeley, CA: Minimum Wage Increase, Paid Sick Leave, and Work Schedule Rules Will Soon Be In Effect
  7. San Diego, CA:  Equal Pay Bill for City Contractors and Consultants
  8. Santa Clara, CA: Santa Clara City’s Minimum Wage to Increase in 2018
  9. Connecticut: Anti-Discrimination Protections Expanded for Veterans
  10. Georgia: Amended Law Now Preempts Predictive Scheduling Ordinances
  11. New Jersey:  Anti-Discrimination Protections for Military and Veterans Expanded
  12. New York: Guidance on Tax Treatment of PFL Contributions and Benefits now Available
  13. Nevada: Pregnant Workers’ Fairness Act Poster Now Available
  14. North Carolina:  Fair Classification Act Emphasizes State Focus on Proper Employee Classification
  15. Texas: Hurricane Harvey Relief for Employees
  16. Washington:  New Biometric Information Protection law

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NLRB General Counsel Issues Memo on the Supreme Court’s Pending Class Action Waiver Decision

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January 26, 2017

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The U.S. Supreme Court recently announced its intention to review the split of authority among circuit courts regarding class action waivers in arbitration agreements.  In the meantime, employers have wondered whether similar cases currently in progress with the National Labor Relations Board (“NLRB”) will be suspended pending the Supreme Court’s decision.  The NLRB’s general counsel issued a memo instructing regional directors on how to proceed with similar cases.

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U.S. Supreme Court to Resolve Split on Validity of Class Action Waivers in Arbitration Agreements

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Expected Summer 2017

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Last year, we reported on the Ninth and Seventh Circuit cases stating that class action waivers in arbitration agreements are invalid under the National Labor Relations Act (“NLRA”).  The Second, Fifth and Eighth Circuits have taken the opposite stance, concluding that employment agreements that require claims to be arbitrated individually are fully enforceable.

Due to this split in opinion, the U.S. Supreme Court has finally decided to review the issue at hand.  The Supreme Court will be reviewing three decisions: the Fifth Circuit’s ruling in favor of enforcing class action waivers, and the Ninth and Seventh Circuit’s rulings against.  A decision is anticipated sometime in the Summer of this year.

Employers should stay tuned, as the outcome of the Supreme Court’s review could affect workplace employment agreements.  ManagEase will continue to report on this developing area as updates occur.

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.

© 2017 ManagEase, Incorporated.

Ninth Circuit: Mandatory Class Action Waivers in Arbitration Agreements Are “Illegal”

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 Employers with Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington Employees

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August 22, 2016

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The Ninth Circuit has stated that use of mandatory class action waivers in arbitration agreements are prohibited, becoming the second federal circuit court to strike down such agreements.  In short, employers in the states covered by the Ninth Circuit cannot require employees to sign an agreement giving up their right to class action/collective claims as a condition of employment.

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NLRB Says Joint-Employer Workers Can Join Unions Without Consent of Employers

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July 11, 2016

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Last year, we reported on the National Labor Relations Board’s (“NLRB”) controversial decision to redefine the joint-employer standard.  This year, the NLRB has reinstated a standard that allows bargaining units composed of both solely and jointly-employed workers to unionize, with or without their employer’s consent.  This would allow temporary workers who are jointly employed to more easily unionize.

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Seventh Circuit States Class Action Waivers in Arbitration Agreements are Invalid

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May 26, 2016

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In Lewis v. Epic Systems Corporation, the Seventh Circuit Court of Appeals unanimously stated that arbitration agreements that prohibit collective arbitration or collective actions, including class, collective and representative actions, violate Section 7 of the National Labor Relations Act (“NLRA”).

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