Gibbons Law Alert
On January 27, 2014, the U.S. Supreme Court issued a unanimous opinion in Sandifer v. United States Steel Corp., which clarified what it means for an employee to be “changing clothes” under Section 3(o) of the Fair Labor Standards Act (“FLSA”). The Court’s decision will affect unionized workplaces, where employees change in and out of (or “don and doff”) protective or sanitary clothing in connection with their jobs.
On Monday, the National Labor Relations Board announced that the Senate has filled all five of its Board Member seats for the first time since August 21, 2003. Moving forward, this ends the debate as to whether the Board has the constitutional authority to take action, such as issuing decisions, so long as three of these Senate-confirmed members are present when the Board takes action.
Earlier this week, the National Labor Relations Board (the “Board” or the “NLRB”) announced it will petition the United States Supreme Court to review Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013). As previously reported, in Canning the Federal Court of Appeals for the District of Columbia held that three appointments of officers to the NLRB by President Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s so-called Recess Appointments Clause.
Now well over a year ago, the National Labor Relations Board (the “Board” or “NLRB”) issued a rule requiring most private sector employers to post a notice of employee rights to unionize in their workplaces. The posting requirement was initially to take effect on November 14, 2011. The requirement was postponed, first, until January 31, 2012, and, then again, until April 30, 2012 in light of legal challenges to the rule. Prior to the April 2012 “effective date,” the NLRB announced that it would once again postpone the rule–this time indefinitely “until the legal issues are resolved.” As recently reported, the Board’s great laid plans may go further awry in light of a federal appellate court decision challenging the NLRB’s ability to take any further action until at least one more Board Member is lawfully appointed. For answers to questions regarding the posting, or the Boards’s current state of affairs, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.
In a groundbreaking opinion, the District of Columbia Court of Appeals has ruled that three appointments of officers to the National Labor Relations Board (the “Board” or the “NLRB”) by President Barrack Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s so-called Recess Appointments Clause. As a result, the Court vacated the underlying Board decision that gave rise to the appeal, concluding that the NLRB had no authority to issue the decision because only two of its five members were validly appointed. Thus the Board lacked the quorum necessary for it to take action. The ruling has widespread implications for the NLRB as well as the President’s overall “recess appointment” powers.
In a recent decision, a NLRB administrative law judge (the “ALJ”) found three policies in the Dish Network’s nationally-distributed handbook unlawful: a social media policy, a policy that restricts contact with the media, and a policy that restricts contact with government agencies. While the challenge to the social media policy is nothing new, the decision serves as a reminder for union and non-union employers alike that no policy is safe from scrutiny by the National Labor Relations Board (the “Board” or the “NLRB”).
In light of recent guidance by the National Labor Relations Board (the “Board”), non-union employers should review the “at-will” language found in their handbooks (and many standalone policies) to make sure it does not constitute an unlawful waiver of an employee’s right to engage in union activity. By now, it should come as no surprise that the Board has an interest in non-union workplaces. From promoting a mandatory workplace posting requirement to challenging seemingly innocuous social media policies, the Board should be on the radar screen for all employers. Most recently, the Board has weighed in on at-will disclaimers found in most handbooks or manuals. Such disclaimers typically explain that the employment relationship is not a contractual one, and the employer or employee can end employment at any time for any reason so long as that reason is not unlawful.
As previously discussed on the Employment Law Alert, the National Labor Relations Board (the “Board” or the “NLRB”) recently implemented a rule that could speed up the union election process and, in turn, leave employers with less time to communicate their positions on unions to employees. Yesterday, the United States District Court for the District of Columbia declared the rule invalid because only two Board members were “present” when the NLRB passed the rule last December. The court explained that the Board did not satisfy the National Labor Relations Act’s requirement that the NLRB have a quorum (typically the presence of three Board members) to conduct business when it voted on the rule. “According to Woody Allen, eight percent of life is just showing up,” wrote the court. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
On December 22, 2011, the National Labor Relations Board (the “Board” or the “NLRB”) issued another “union-friendly” rule that could speed up the union election process, leaving employers with limited time to respond to a union organizing drive. A pending lawsuit challenging the legality of the new rule is outstanding. Notwithstanding, the rule applies to all newly-filed election petitions effective today as the court has not postponed the rule’s effective date despite the ongoing litigation. The court will rule on the legitimacy of the rule by May 15 (before an election could take place under the new rule).
We previously reported that the National Labor Relations Board (the “Board” or “NLRB”) issued a final rule requiring most private-sector employers to post a notice of employee rights to unionize in their workplaces. In a follow-up report, we explained that the Board delayed the posting’s effective date from November 14, 2011 until January 31, 2012 in the wake of lawsuits filed by business and industry organizations (including the United States Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business challenging the NLRB’s authority to issue such a rule. The Board recently announced that it once again is postponing the effective date of the posting — this time until April 30, 2012 — in order to “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” We continue to encourage employers to take advantage of this additional time to assess the potential impact that the required posting may have on their workplaces, and the manner in which they may want to communicate with employees regarding their positions on unions (if any). Attorneys in Gibbons Employment and Labor Law Department have extensive experience counseling both union and non-union employers regarding labor relations issues. If you have any questions regarding the impact that this rule may have on your business, please feel free to contact any of the attorneys in the Department.