Category: Labor

NLRB Regional Director Continues Board’s Expansion in Higher Ed

A National Labor Relations Board (NLRB) regional director has decided that student resident advisors (“RAs”) are statutory employees under the National Labor Relations Act (NLRA). In George Washington Univ., the regional director ordered that an election take place May 3rd, so that the student RAs can decide whether to unionize through a secret ballot process. The decision is the latest in a string that expands the NLRA’s reach at colleges and universities, and comes on the heels of a memorandum authored by the Board’s general counsel that broadly interprets those decisions. Facts George Washington University requires all undergraduate students to live in residence halls until their senior year as part of the “student experience.” The university staffs its residence halls with student RAs whose role is to assist other students living in the residence halls and build relationships with and among them. The student RAs have wide discretion in performing their role, including the activities they choose to build relationships. Very few student RAs serve in the role for more than a year. There are, of course, parameters around being a student RA. They must be full-time undergraduate students who have completed at least one year of studies and are in good standing at the university. Individuals interested in becoming student RAs undergo an application and...

USDOL New Persuader Rule Permanently Enjoined

We are pleased to report that a federal court in Nat’l Fed’n of Indep. Bus. v. Perez issued a nationwide injunction permanently enjoining the United States Department of Labor’s new persuader rule last week. The decision is a major victory for the business community because the new rule placed employers’ abilities to freely seek labor counsel in jeopardy by expanding their obligations to publicly disclose arrangements into which they entered with the labor consultants, including their attorneys.

Federal Judge Imposes Nationwide Preliminary Injunction on DOL’s New “Persuader” Rule

On June 27, 2016, in National Federation of Independent Business v. Perez, Judge Sam R. Cummings of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction precluding the United States Department of Labor (“DOL”) from enforcing its recently introduced rule interpreting the Labor-Management Reporting and Disclosure Act’s (“LMRDA”) “advice” exemption. 81 Fed. Reg. 15,924 et seq.

Supreme Court Accepts Use of Representative Sample To Prove Classwide Liability

In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court of the United States definitively answered the question of whether statistical “representative evidence” may be used in class actions to establish that “questions of law or fact common to class members predominate over any questions affecting only individual members” pursuant to Rule 23(b)(3). According to the Court’s much-anticipated opinion, the answer is yes: “Its permissibility turns not on the form a proceeding takes – be it a class or individual action – but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”

Department of Labor’s New “Persuader” Rule Requires Employers and Labor Relations Consultants to Publicly Disclose Arrangements

On March 24, the United States Department of Labor (“DOL”) published a final rule imposing new reporting requirements under the Labor-Management Reporting and Disclosure Act (“LMRDA”) that could impede employers’ communications with their workers about unions. The rule will take effect on April 25, and will cover arrangements, agreements, and payments between employers and their labor relations consultants – including their attorneys – beginning July 1, 2016.

NLRB Ruling is Problematic for Employer Workplace Investigation Policies

The National Labor Relations Board (“NLRB”) decided that an employer’s workplace investigations policy, which recommends employees keep an internal investigation confidential, violated the National Labor Relations Act (“NLRA”) because it interfered with employees’ rights to communicate regarding matters affecting terms and conditions of employment. The ruling creates a quandary for employers to maintain effective workplace investigation policies and practices including confidentiality statements in anti-harassment policies.

NLRB Expands Reach by Altering Joint-Employer Standard

Recently, in Browning-Ferris Indus. of Cal., the National Labor Relations Board continued to expand its reach and once again altered decades old law in favor of labor unions, this time by making it easier for unions to hold multiple businesses responsible for bargaining with a single group of workers over employment conditions and terms. The decision has potentially far-reaching implications for companies that enter into staffing arrangements with third parties, including franchisors, who now may have legal obligations to bargain with unions where they never before did.

NLRB Calls a Timeout in Northwestern Football Players Case

Last week, the National Labor Relations Board (NLRB) issued its long-awaited decision in Northwestern University, a case involving an attempt by scholarship football players to unionize under the National Labor Relations Act. About a year-and-a-half ago, in response to the university’s attempt to dismiss a union election petition filed on behalf of the players, a regional director decided that the students were statutory employees who could unionize. The university challenged the regional director’s decision, which set the stage for the Board’s decision.

NLRB Judge Strikes Down Employee Handbook Confidentiality Policy — Including Protection of Customer and Vendor Data

An employee handbook containing policies prohibiting (1) the disclosure of confidential company information, including personnel data, (2) use of the employer’s logo or trademark except as authorized by the company and (3) obstruction and interference with government investigations, including a requirement to notify the company’s human resources representatives or law department and to obtain approval to release information for a government investigation was found to violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by an NLRB Administrative Law Judge (“ALJ”) in Macy’s Inc., JD(NY)-21-15. According to the ALJ’s decision, Macy’s employees when reading the policies could reasonably construe such policies to restrict their rights under Section 7 of the NLRA to engage in protected concerted activity for their mutual aid or protection.

NLRB General Counsel Issues Memorandum Regarding “Quickie” Election Rule

On April 14, 2015, the National Labor Relations Board’s “quickie” election rule took effect (despite pending lawsuits challenging the legality of the rule). Earlier this month, the Board’s general counsel issued a 36-page memorandum to provide guidance on the new rule, which we summarize in some detail below in an effort to help employers navigate these new waters. The memorandum serves as a reminder that non-union businesses should consider implementing a labor relations strategy now so they can effectively, lawfully, and quickly respond to a notice of petition for election if they receive one under the new rule. An in-depth discussion of the general counsel’s memorandum is provided. The highlights are as follows: