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21 Nov 2017 DOL Head Slams NLRB’s Vague Test for Joint Employment

  According to a recent report by Bloomberg BNA, Department of Labor (DOL) Secretary Alexander Acosta expressed dissatisfaction for the National Labor Relations Board’s (NLRB) joint-employment test during remarks to the Federalist Society’s National Lawyers’ Convention. Specifically, while discussing his view of the DOL’s test for joint employment, he brought up and criticized the NLRB’s approach to the issue. He described the NLRB’s rule as being too vague and potentially infringing on the “freedom to…

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14 Nov 2017 NLRB Protected Concerted Activity or Harassment – Will Employers Finally Get Clarity?

  Yesterday, it was announced the NLRB and EEOC will issue a guidance in an effort to help employers better understand overlapping obligations under the National Labor Relations Act (NLRA) and Title VII. The guidance no doubt is the result of a longstanding tension between an employee’s right to openly communicate about workplace issues (protected concerted activity) and an employers’ obligation under Title VII to prevent workplace harassment and bias, and be proactive about doing…

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08 Nov 2017 Action! House Passes Legislation to Stave Off Broadening Definition of Joint Employment

  Congressional efforts to potentially undo the National Labor Relations Board’s (NLRB) Browning-Ferris decision took another step forward on Nov. 8. The House of Representatives passed legislation that would redefine “joint employer” under the National Labor Relations Act (NLRA) to only cover instances when two or more companies have direct control (as opposed to merely indirect or potential control) over a group of workers. In other words, if ultimately signed into law, the bill would…

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06 Oct 2017 Will Congress Act to Stave Off the Broadening Definition of Joint Employment?

  Congressional efforts to potentially undo the National Labor Relations Board’s (NLRB) Browning-Ferris decision took a step forward on Oct. 4. The House Committee on Education and the Workforce passed legislation that would redefine “joint employer” under the National Labor Relations Act (NLRA) to only cover instances when two or more companies have direct control (as opposed to merely indirect or potential control) over a group of workers. In other words, if ultimately signed into…

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22 Aug 2017 NBA Team’s Electronic Display Operators are Employees, Not Independent Contractors, Says NLRB

  On Aug. 18, the National Labor Relations Board (NLRB) determined that a group of electronic display operators for the NBA’s Minnesota Timberwolves were employees, not independent contractors. The case came about after the electronic display crew filed a petition to have a union, the International Alliance of Theatrical Stage Employees, represent them. The Timberwolves argued that the representation petition should be dismissed on grounds the workers were independent contractors, as the National Labor Relations…

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15 Aug 2017 A Nice Change of Pace: NLRB Upholds Employer’s Confidential Information Policy

  From social media policies to positive workplace environment statements to non-employee access to company property procedures, the National Labor Relations Board (NLRB) has struck down numerous company personnel policies in recent years on grounds they “chill” employees’ ability to engage in protected activity under the National Labor Relations Act (NLRA). The board generally cites Section 7 of the NLRA as support for its positions, which protects employees engaging in “concerted activity” for “mutual aid…

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31 Jul 2017 ‘Absurd Results’: NLRB Takes ‘Facebook Discipline Cases’ to New Heights (Or New Lows, Depending on Your Point of View)

  In a July 27 opinion that National Labor Relations Board (NLRB) Chairman Philip Miscimarra characterized as “absurd,” a majority of NLRB members overturned an employee’s discharge for a Facebook post that encouraged a former coworker to sue the company. The case was filed against Butler Medical Transport, LLC, by former employees challenging terminations made pursuant to the company’s social media policy.   The social media policy at issue provided, “I will refrain from using social…

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26 Jul 2017 Woo-hoo! Federal Court Overrules NLRB, Says Companies Can Require Employees to Promote Positivity

  The National Labor Relations Board’s (NLRB) attack on personnel policies has been well-chronicled over the years. In May 2016, however, the NLRB’s view of handbook policies arguably peaked when it struck down numerous policies in a T-Mobile handbook, including one that generally asked employees to be professional and maintain a “positive work environment.” In that case, the NLRB explained its view by stating: “[w]e find that employees would reasonably construe the rule to restrict…

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12 Jul 2017 Playing Hardball – NLRB Holds High School Lacrosse Referees Are Employees, Not Independent Contractors

  On July 11, the National Labor Relations Board (NLRB) held that junior high and high school lacrosse referees that provided their services through the Pennsylvania Interscholastic Athletic Association (PIAA) were statutory employees under the National Labor Relations Act (NLRA) and not independent contractors. The NLRB’s decision clears the way for negotiations between the represented referees and the PIAA based on a vote that favored the union. It also makes way for union organizing for…

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07 Jul 2017 Eighth Circuit Sides With Jimmy John’s and Finds Employee Actions Were Not Protected Activity

  The U.S. Court of Appeals for the Eighth Circuit found on July 3 that employees of a Jimmy John’s franchisee made false and calculated accusations that were intended to hurt the business interest of their employer, rather than to encourage change in workplace policies. The ruling reverses an NLRB decision and an initial verdict by an Eighth Circuit panel.   In 2010, the Jimmy John’s Workers Union, an affiliation of the Industrial Workers of…

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