Management Memo

On June 15, 2021, the Office of General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released an Advice Memorandum, explaining that an Illinois pub did not commit an unfair labor practice when it fired an employee who had previously complained about the pub’s COVID-19 safety policies, because the employee’s complaints did not constitute “protected concerted activity,” as defined under the National Labor Relations Act (“NLRA”). The NLRA protects employees engaged in concerted activity, including participating in union activities ...

On the Workforce Bulletin blog, I recently co-authored “New York Hero Act Amendments Passed and Sent to Governor for Signature” with my colleagues Susan Gross Sholinsky, Robert J. O'Hara, and Christopher Shur.

Employers with union represented employees should pay special attention to the provisions of the HERO Act that mandate a role for labor unions in the Workplace Safety Committees provided for in the Act.

Following is an excerpt:

As we previously reported, on May 5, 2021, New York Governor Andrew Cuomo signed the Health and Essential Rights Act (the “HERO Act” or ...

Following on his promises to be “the most pro-union president you’ve ever seen,” President Joe Biden signed the Executive Order on Worker Organizing and Empowerment (“Executive Order”) on April 26, 2021, creating a task force whose purpose is to strengthen unions and make it easier for workers to unionize. Along with endorsing the Protecting the Rights to Organize Act in March, President Biden is affirmatively putting a heavy federal foot on the scale to empower unions and bolster declining union membership, both in the public and private sectors.

The Executive Order ...

On March 30, 2021, the Office of General Counsel of the National Labor Relation Board (“NLRB” or “Board”) released an Obama-era Advice Memorandum, originally prepared in 2016, opining that racially charged comments were protected concerted activity.  Just one day later, on March 31, 2021, Acting General Counsel Peter Sung Ohr affirmed in his latest Memorandum (“March 31^st Memorandum”) his plan to pursue a broadening of employees’ protections under Section 7 of the National Labor Relations Act (“NLRA” or “Act”) beyond concerted activities relating to ...

Confidential arbitration agreements between employers and their employees are commonplace.  Employers favor such agreements for many reasons, including preserving privacy and allowing legitimate claims to be either settled or litigated based on their merits, rather than the threat of public embarrassment or high defense costs.  Employees, too, may value the confidentiality afforded by arbitration.  In contrast to private and confidential arbitration proceedings, public testimony and publicly filed court pleadings, motions, and briefs may contain unflattering or ...

New York State now requires employers to grant employees paid time off for COVID-19 vaccinations. In my recent post with Susan Gross Sholinsky and Nancy Gunzenhauser Popper, "New York Issues FAQs on Paid Vaccination Leave Law," we note that the law allows for limited waivers in collective bargaining agreements. While the law is vague, the State has now given some additional guidance in FAQ's issued this week.

The following is an excerpt from the post:

As we recently reported, as of March 12, 2021, all private employers in New York must provide their employees with up to four hours of ...

As featured in #WorkforceWednesday:  This week on our special podcast series, Employers and the New Administration, we look at what President Biden’s support for unions throughout his political career might mean for labor management relations.

In this episode, Glenn Spencer, Senior Vice President of the Employment Policy Division at the U.S. Chamber of Commerce, and attorney Steve Swirsky discuss what employers can expect from the NLRB under the Biden administration. Attorney David Garland leads the conversation.

See below for the video edition and the extended ...

On Tuesday, the three-member, all Republican, National Labor Relations Board (the “Board”) issued a 3-0 decision in General Motors LLC and Charles Robinson, 369 NLRB No. 127 (July 21, 2020), reversing its longstanding standard for determining when employers violate the National Labor Relations Act (the “Act”) by disciplining employees who, while engaged in activity protected under Section 7 of the Act, use profanity-laced speech, as well as racial, ethnic or sexist slurs, or other abusive conduct toward or about management or other employees. Going forward, including ...

On June 23, 2020, the National Labor Relations Board (“NLRB” or “Board”) overruled a 2016 decision that required employers to bargain over the discipline of employees during negotiations for a first contract.  The Board noted that the decision it issued Tuesday in 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (“Care One”), reinstated “the law as it existed for 80 years,” under which the National Labor Relations Act (“Act”) did not impose a “predisciplinary bargaining obligation” on employers with newly-unionized ...

The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test.  A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that ...