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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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23 Jun 2017 Negotiating Tips: The Art of the Ratification Bonus

  Every negotiation, especially complex negotiations, requires careful planning and, once things get underway, creative ideas and tools to bring the deal to completion. In the collective bargaining context, one often overlooked tool available to companies that can help “grease the skids” is the ratification bonus (aka “signing bonus”). There are two critical components to an effective ratification bonus: 1) structuring it in a way that truly incentivizes a union to accept the deal you…

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23 Jun 2017 Take a Screen Shot of This: Supervisor Unlawfully Interrogated Employee Through Text, NLRB Says

  Texting has become one of the most common ways  people communicate. Despite its prevalence, however, texting can raise serious concerns for employers, particularly when such communication takes place between a supervisor and employee in the context of a union election.  A recent National Labor Relations Board (NLRB) case makes that point clear. In RHCG Safety Corp and Construction & General Building Laborers, Local 79, the Board held that a coercive text message from a…

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19 Jun 2017 Fahrenheit 180: DOJ Reverses Course, Abandons NLRB at Supreme Court in Class Action Fight

  The heat is turning up at the U.S. Supreme Court. Arguments to the Court regarding whether class action waivers should be permitted in the employment context recently just kicked off, and a major unexpected development already has emerged. On June 16, the Department of Justice (DOJ) did a 180 and filed a brief in support of three companies who are opposing the National Labor Relations Board (NLRB) before the Court. The DOJ previously supported…

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15 Jun 2017 ‘Let’s Get Ready To Rumble!’ Class Action Waiver Battle Kicks Off At Supreme Court

  The class action waiver battle between employers and the National Labor Relations Board (NLRB) has been brewing for years. It’s finally coming to a head, as the U.S. Supreme Court agreed to resolve the dispute earlier this year and a group of employers just filed their opening briefs in the matter.   Class action waivers are a tool utilized by companies to blunt costly and time-intensive class or collective claims brought by a large…

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05 Jun 2017 ‘Smile, You’re On Candid Camera’ – Federal Court Upholds NLRB Ruling That Prohibits Non-Union Employers From Banning Recordings in the Workplace

  Many employers maintain policies prohibiting surreptitious recordings in the workplace. As noted on the blog last year, however, the National Labor Relations Board (NLRB) struck down such a policy in Whole Foods Market, Inc., 363 NLRB No. 87 (2015). In that case, the NLRB held that an employer’s prohibition on the use of recording devices in the workplace to record conversations, events, etc., without company authorization was unlawful under the National Labor Relations Act…

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26 May 2017 Senator Introduces Bill To Amend NLRA And Reverse Micro-Unit Trend

  It’s been a busy few weeks on the micro-unit front. As just reported on the blog, Chairman Philip Miscimarra recently signaled he would like to overturn the National Labor Relations Board’s decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), that gave rise to a wave of micro-units in recent years. Following on the heels is news out of the Senate on May 24 that some members of Congress also…

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19 May 2017 First-Year Report Card on Graduate Student Assistants Unionization

  Last fall, the National Labor Relations Board (NLRB) re-opened the door to unionization by graduate student assistants. The NLRB overturned 12 years of precedent and ruled that graduate assistants at Columbia were employees eligible to unionize under the NLRA. An entire school year has passed since that ruling in August 2016, so we wanted to provide a progress report on graduate student unionization.   At Columbia, the university at issue in the August NLRB case,…

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