Category: Labor

NLRB Gives Employers Several Reasons to Be Jolly This Holiday Season

December 2017 has been one for the labor law community to remember. We have seen a wintry flurry of actions by the newly-constituted National Labor Relations Board (NLRB), which has begun a much anticipated releveling of the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions under the prior administration. On the heels of an instructive and potentially predictive memorandum issued by the Board’s new General Counsel, the NLRB raised questions about the 2014 “quickie” election rule and issued a number of decisions setting forth more neutral standards for analyzing significant legal issues under the National Labor Relations Act (NLRA), including: an administrative law judge’s ability to accept a charged party’s proposed settlement terms; when multiple employers should be deemed “joint employers” under the NLRA; an employer’s ability to take unilateral action consistent with its past practices; the legality of workplace rules that do not expressly prohibit concerted activities protected by the NLRA; and appropriate collective bargaining units. New NLRB General Counsel’s First Memorandum On December 1, 2017, the NLRB’s new General Counsel, Peter B. Robb, issued a memorandum leaving little doubt that he has a very different view of the NLRA than his predecessor on several key issues. In the memorandum, the General Counsel—who is responsible for investigating and prosecuting unfair labor...

Senate Approves Trump’s Pick for NLRB General Counsel

This week, the United States Senate approved President Donald Trump’s nomination of Peter B. Robb to be the next General Counsel of the National Labor Relations Board. The move is a key step toward releveling the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions by the prior administration, including its NLRB General Counsel. The job of General Counsel is a significant one at the Board. The General Counsel is responsible for investigating and prosecuting unfair labor practice cases and supervising the regional offices in their processing of cases. As a result, the General Counsel has control over the types of cases and legal theories that make their way to the NLRB for decisions. The prior General Counsel, Richard F. Griffin, Jr., interpreted the National Labor Relations Act in ways that subjected employers to labor law liabilities where none historically existed. This included arguing that individuals better classified as college students and independent contractors were statutory employees, neutral workplace policies were unlawful, and distinct entities in a business relationships were joint employers. Griffin’s term expired last month and Jennifer A. Abruzzo, the NLRB’s Deputy General Counsel, has been serving as the Acting General Counsel since that time. As a private practitioner, Robb has been critical of numerous actions by the prior administration,...

New York Employers Mid-Year Review

In 2017, employers in New York encountered several important statutory changes affecting recruitment of applicants and retention of independent contractors. More legal change will come in 2018, warranting a mid-year review of current employment and hiring practices, as well as preparation for next year’s developments. Employers should take the time now to audit current practices and prepare for the imminent future. Pay Equity On May 4, 2017, Local Law 67 was enacted to prohibit all employers in New York City from inquiring about an applicant’s salary history (including current or prior wages, benefits, and other compensation), and from relying on an applicant’s salary history when determining his or her compensation package during the hiring process, including contract negotiations. The law applies to both public and private employers and employment agencies, and to their employees and agents (collectively, “employers”). Employers may, however, engage in communications with an applicant about his or her expectations as to salary, benefits, and compensation, including any deferred compensation or unvested equity which the applicant may forfeit as a result of leaving his or her current employer. In addition, if the candidate voluntarily (and without any prompting by the prospective employer), discloses his or her salary history to the prospective employer, the employer may consider salary history in determining compensation for the applicant,...

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Thank you for visiting the Gibbons Employment Law Alert blog! Content on our site, authored by members of the Gibbons Employment & Labor Law Department, discusses employment and human resources issues and news within the legal and business industries. How are we doing? To review our blog and nominate the Gibbons Employment Law Alert for this year’s ABA Journal’s “Web 100” award, please visit and share why you are a “fan” of our site (Please note: the voting process closes on Sunday, July 30). Thank you in advance for your support.

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.