Unfair Labor Practices

News & Analysis as of

Update: The NLRB and Single Integrated Employers

In October, the National Labor Relations Board (“NLRB” or “Board”) employed a little-used procedural doctrine to issue a consolidated complaint against a parent company of a chain of hospitals located throughout the U.S. The...more

Amex Employment Arbitration Policy Held Unlawful by NLRB

Amex Card Services Company ("Amex") operates a call center in Phoenix, AZ. Amex required all new hires to sign an acknowledgement form acknowledging receipt and understanding of its Arbitration Policy as a condition of...more

Fifth Circuit Again Rejects NLRB Ruling That Employment Agreements Requiring Individual Arbitration Are Unlawful

On December 16, 2014, we reported on the National Labor Relations Board’s ruling that Murphy Oil violated the National Labor Relations Act by requiring its employees to sign arbitration agreements which “requir[ed] . . ....more

Fifth Circuit (Again) Reverses NLRB and Finds Class Action Waivers in Arbitration Agreements Do Not Violate the NLRA

The battle between the NLRB and the Fifth Circuit rages on, as the Fifth Circuit again ruled that employers do not violate the National Labor Relations Act when they require employees to sign arbitration agreements containing...more

NLRB Discusses Joint Employment for the First Time Since Browning-Ferris

The National Labor Relations Board, in one of its first applications of the Browning-Ferris decision, gave hope to non-union contracting entities engaged in franchising and subcontracting relationships. After an extensive...more

Fifth Circuit Stands Pat, Again Rejects NLRB Attempt To Void Class And Collective Action Waiver

As expected, the Fifth Circuit once again has rejected the NLRB’s highly controversial position that the National Labor Relations Act (“NLRA”) prohibits employers from requiring mandatory arbitration agreements that preclude...more

The Contours of a Franchisor’s Vicarious Liability

In a ruling that reflects a clear understanding of the distinction between the roles of the franchisor and franchisee, the Appeals Court of Massachusetts recently held that Domino’s was not vicariously liable for the acts of...more

"Successor Bar" Prevents Service Provider's Employees from Repudiating Union

The National Labor Relations Board's recent decision in Lily Transportation Corp., 363 NLRB No. 15, highlights the potential impact of a finding that a follow-on service provider is a "successor" to a prior provider....more

How the NLRB Spent Its Summer — Could Be a Chilly Autumn

For those of us in the employment field attempting to recover from the languor of long summer days, it’s time to catch up and ask what the NLRB has been up to during the dog days. The answer – a lot. And so we take this...more

Browning-Ferris: The NLRB Redefines Joint-Employer Status

On August 27, 2015, the National Labor Relations Board (“NLRB”) diverged from three decades of precedent by broadening the reach of its joint-employer test in a decision involving Browning-Ferris Industries (“BFI”), a waste...more

Pacific Rim Countries Reach Historic Agreement on the Trans-Pacific Partnership, But Will Congress Approve It?

Trade ministers from 12 Pacific Rim countries announced, on October 5, 2015, that they had reached an agreement in principle on the Trans-Pacific Partnership (TPP). The TPP would arguably be the largest free trade agreement...more

What Employers Must Know About Wage and Hour Law

This year, according to a recent Syracuse University study, federal courts are on track to handle a record number of wage-and-hour lawsuits stemming from violations of the Fair Labor Standards Act (FLSA), which establishes...more

What’s the Real Effect of OSHA’s Revamped Inspection Process, the “Enforcement Weighing System?”

On October 1, OSHA started its “Enforcement Weighing System,” which means that OSHA Compliance Officers and Area Offices will be under less pressure to complete a number of inspections and will receive credit for separate...more

Why Getting Handbooks Right Matters: NLRB Judge Holds Verizon’s Restrictions on Employee Communications During Non-Working Time...

Despite previous NLRB rulings telling them to stop, some employers continue to impose broad prohibitions on personal employee communications over company email. As an administrative law judge recently reminded us, failing to...more

California Employment Law and Arbitration: The Battle Intensifies

Yesterday, by a two-to-one vote, the Ninth Circuit joined the California Supreme Court in holding that Private Attorneys General Act (PAGA) claims are an exception to the Federal Arbitration Act. In Sakkab v. Luxottica Retail...more

Be Aware of Public Employees Disciplinary Proceedings Protections: Loudermill, Wiengarten and Garrity

This post is primarily for public sector employers such as state agencies, municipalities and districts. By virtue of being employed by the government and quite likely represented by a labor union, public sector employees in...more

Is Your Company a Joint Employer?

Please see Chart below for more information. ...more

NLRB Says Arbitration Agreement Without Carve-Out for Unfair Labor Charges Violates Federal Labor Law

Last week’s EmployNews reported on efforts by the Equal Employment Opportunity Commission to attack employer-prepared releases because they supposedly do not contain adequate assurances that their terms do not prevent...more

Bill Would Greatly Expand Penalties, Remedies for Unfair Labor Practices

Democratic lawmakers introduced legislation on September 16, 2015 that would greatly expand the remedial scope of the National Labor Relations Act. Crafted with input from labor leaders, the Workplace Action for a Growing...more

NLRB’s Joint Employer Ruling Threatens to Reorder Employment Relations in the Health Care Industry

More than many other industries, the American health care system has a highly fragmented set of interlocking business relationships. Services are provided in an integrated network by a host of service providers who operate...more

Beyond the NLRB’s Browning-Ferris joint employer decision: what does it mean for franchising?

The new, expanded concept of “joint employer” is inexorably taking hold. Proponents of this new outlook are striving to apply it to franchising - part of a broader initiative to overcome the so-called “fissured employment”...more

Will “Host Employers” Face Increased Scrutiny from OSHA? Recent NLRB ruling may expand OSHA’s focus on host employers.

For the past several years, the U.S. Department of Labor, OSHA has put in place initiatives, formal and informal, relative to temporary employees in the workplace. The upshot of those initiatives is that OSHA cited both the...more

Franchisors Vulnerable to Unfair Labor Practice Allegations

As expected, the National Labor Relations Board (NLRB) recently broadened the definition of joint employer.  In a 3-2 decision, the NLRB adopted the joint employment standard recommended by the NLRB’s General Counsel.  The...more

In Browning-Ferris, Businesses Lose As the Board Crafts a Solution in Search of a Problem

Marking a sea-change in labor law and a departure from decades of settled precedent, the National Labor Relations Board formulated a new joint employer standard in August 27’s Browning-Ferris Industries of California, Inc....more

NLRB Broadens Joint Employer Test To Include Indirect Control

Last week the National Labor Relations Board issued a decision in Browning-Ferris Industries, reversing decades of precedent to revise the standard it will use to determine when two companies are joint employers. The NLRB's...more

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