Management Memo

One of the top stories featured on Employment Law This Week: The U.S. Court of Appeals for the Seventh Circuit has joined the National Labor Relations Board in finding that arbitration agreements containing class action waivers violate the National Labor Relations Act (NLRA).

At issue is a collective and class action by employees of Epic Systems about overtime pay. The company was seeking to dismiss the case based on a mandatory arbitration agreement that waived an employee’s right to participate in a collective or class action. Unlike the Fifth Circuit, the Seventh Circuit ...

The National Labor Relations Board, in a 2-1 decision by Chairman Mark Pearce and Member Kent Hirozawa, in American Baptist Homes of the West, 364 NLRB No. 13, has adopted a new standard for considering the legality of an employer’s hiring of permanent replacements in response to economic strikes. The decision, in the words of Member Philip Miscimarra’s dissent, is not only a “deformation of Board precedent,” but “a substantial rearrangement of the competing interests balanced by Congress when it chose to protect various economic weapons, including the hiring of ...

[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]

The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration agreement that it required all of its workers to sign, requiring them to bring any wage and hour claims that they have against the company in individual arbitrations “violates the National Labor Relations Act (NLRA) and is unenforceable under the Federal ...

[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]

National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has announced in a newly issued Memorandum Regional Directors in the agency’s offices across the country that he is seeking a change in law that would make it much more difficult for employees who no longer wish to be represented by a union to do so.  Under long standing case law, an employer has had the right to unilaterally withdraw recognition from a union when there is objective evidence that a majority of the ...

Two years ago, as we discussed here and here, in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the U.S. Supreme Court held unconstitutional President Obama’s January 2012 recess appointments of Members Block, Flynn and Griffin to the National Labor Relations Board (“Board” or “NLRB”). The decision cast into doubt the validity of hundreds of NLRB orders and official actions.

Recently, in Advanced Disposal Services East Inc. v. NLRB, decided April 21, 2016, the employer, Advanced Disposal Services, unsuccessfully attempted to invalidate actions taken by Regional ...

[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]

In a further incursion into the area of the gig and new age economy, the Regional Director for the National Labor Relations Board’s Los Angeles office has issued an unfair labor practice complaint alleging that it is a violation of the National Labor Relations Act (the “Act”) for an employer to misclassify an employee as an independent contractor.

The Complaint, which is based on a charge filed by the International Brotherhood of Teamsters, through its’ Justice For Port Truck ...

[caption id="attachment_1437" align="alignright" width="98"] Steven M. Swirsky[/caption]

NLRB General Counsel Richard F. Griffin, Jr. has released a General Counsel Memorandum that offers an unusually frank insight into how he intends to use his office for the remainder of his term to pursue what he calls “initiatives and/or priority areas of the law and/or labor policy” to set an agenda to expand the rights of both represented and unrepresented employees and to pare back, substantially in many circumstances, the rights of employers in collective bargaining, responding ...

Steve Swirsky, one of the co-editors of this blog, is featured on Employment Law This Week. He discusses the NLRB's General Counsel memo that outlines the agency's top enforcement priorities for 2016.

The General Counsel for the National Labor Relations Board has issued an internal memo that offers employers insight into his office’s initiatives and emphasis this year. The memo describes the types of cases that must be submitted to the Division of Advice for review, rather than decided by the Regional Office where the charge was filed. Among other priorities, the General ...

One of the featured stories in Employment Law This Week is the DOL's publication of its controversial final rule around labor relations consultants.

The so-called “Persuader Rule” requires employers to disclose when they hire a consultant to help fight attempts at unionization. But the rule, as written, is potentially much broader and could require employers to disclose information about a wide range of consultants and others who they rely on for training and communication.

View the episode below or read more about the new rule in an earlier blog post.

Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: "NLRB Finds a Non-Union Employee’s Foul-Mouthed Complaining About Clients Protected Activity and Slams Employer’s Separation Agreement."

Following is an excerpt:

A recent National Labor Relations Board (“NLRB”) decision by an Administrative Law Judge (“ALJ”) found numerous violations of the National Labor Relations Act (the “Act”) stemming from the reaction of ...