Unfair Labor Practices National Labor Relations Board

News & Analysis as of

Catch-22 for Franchisors: The Joint Employment Dilemma

As government agencies steadily expand the concept of joint employment, franchisors increasingly find themselves in a difficult position. Since August 2015, when the NLRB ruled in Browning-Ferris that entities with the...more

NLRB Majority Stuns Nation By Ruling Employer Has Management Right, Chairman Dissents

In another example of the inconsistency of the current state of Board law, a 2-1 majority of the NLRB ruled that an employer not only had a management right but it wasn’t necessary that this right be expressly set forth in...more

You Said It, Now We’re Going to Hold You to It! Hospitals Estopped From Asserting Disqualification Argument.

In theory, it is not an unfair labor practice to refuse to negotiate with a union engaged in competition with the employer—unless, of course, the employer gave the union other reasons for refusing to negotiate. The...more

NLRB Assumes a Position on Employee Classification in the On-Demand Economy

Seyfarth Synopsis: By filing a complaint against Postmates, Inc. challenging their arbitration waiver, the NLRB assumed that couriers for Postmates are employees, rather than independent contractors. Earlier this month,...more

Fast Food Franchisor may be on the Fast Track to a Decision Concerning Joint Employer Status

The National Labor Relations Board (“NLRB’) recently issued several precedent-breaking decisions that have the potential to expose franchisors to joint employer liability across the county. On October 12, 2016, a new...more

Executive Labor Summary - September / October 2016

NEWS & ANALYSIS - Class arbitration cases continue to stack up at Supreme Court. The National Labor Relations Board on September 9 petitioned the Court for certiorari in NLRB v. Murphy Oil USA, Inc. The lower court...more

Don’t Believe Everything You Read: Labor Board Has Not Ruled College Athletes Are Employees (Yet)

ESPN recently reported that the National Labor Relations Board (NLRB) had “ruled” that Northwestern University’s football players were actually “employees,” and that the University’s policing of its football players’ social...more

The Unexpected Class Of 2016? Groundbreaking Labor Board Decision Creates New Class Of Supervisors

Recently, in a high-profile decision involving Columbia University, the National Labor Relations Board (NLRB) determined that private college and university graduate and undergraduate student assistants – that is, students...more

Employer Wins $5 Million From Bullying Union

Lessons To Be Learned For Organizing Campaigns - For the first time in American labor law history, a jury found that a union defamed and disparaged an employer while waging a bitter organizing campaign, costing the...more

What’s Good for the Goose…

Over the past few years, the National Labor Relations Board (NLRB) has taken issue with employers that discipline employees over Facebook and other social media postings. The NLRB allows employees to discuss wages and other...more

Employer Claims Of Unprofitability And Competitive Disadvantage Enough To Trigger Audit Of Financials By Union, NLRB Majority...

The end of another NLRB fiscal year is upon us.  Today, September 30, marks the last date of the fiscal year.  We can expect to see a number of decisions issue from the Board, and many determinations made at the regional...more

NLRB Releases Advice Memorandum Affirming Misclassification Constitutes Unfair Labor Practice

At the end August, the National Labor Relations Board released an advice memorandum, originally drafted in December 2015, concluding that a group of drivers who worked for a drayage company called Pacific 9 Transportation...more

Federal ALJ Says NLRA Also Protects Employee Social Media Use from Union Interference

Employers are well aware of the National Labor Relations Board’s increasingly aggressive prosecution of employers accused of violating employee rights by attempting to restrict their social media interactions. Earlier this...more

September 2016 Special Immigration Alert

I. DOS Announces 2018 Diversity Lottery - The U.S. Department of State (“DOS”) just released its instructions for the DV-2018 Diversity Visa (DV-2018) lottery. The registration period begins on Tuesday, October 4,...more

Bring in the TV Cameras: NLRB and D.C. Circuit Find Employees Airing Grievance in Media is Protected Activity

An employee goes on television and maligns his bosses for a new company policy with half-truths—and his bosses fire him for disloyalty. Sounds justified, right? Wrong. A National Labor Relations Board (NLRB) decision...more

Split D.C. Circuit Panel Upholds NLRB: DirecTV Violated NLRA By Terminating Technicians For Statements Made During A News...

In a 2-1 ruling in DirecTV Inc. v. National Labor Relations Board, the U.S. Court of Appeals for the D.C. Circuit affirmed the NLRB’s ruling that DirecTV must reinstate technicians who were terminated for complaining about a...more

NLRB Signs Off On Narrow Confidentiality Provision for Employee Reinstatement Agreements

In the recent case of S. Freeman & Sons, Inc., the National Labor Relations Board confronted the question of “whether an employer can require an employee to keep confidential the terms of a settlement agreement in exchange...more

NLRB Scrutinizes Employer Motivation in Hiring Replacement Workers During Strike

Denying a motion for reconsideration, the National Labor Relations Board recently affirmed its decision in American Baptist Homes of the West d/b/a Piedmont Gardens, addressing the relevance of an employer’s motive in hiring...more

Seventh Circuit Upholds NLRB Order to Return Jobs from Mexico to U.S. Facility

The National Labor Relations Act vests the NLRB with broad powers to correct violations of U.S. labor laws. Last month, the Seventh Circuit Court of Appeals confirmed the Board’s broad reach by affirming a decision ordering a...more

August 2016 Independent Contractor Misclassification and Compliance News Update

This month’s news update includes three initiatives by the U.S. Department of Labor to combat IC misclassification. The first was the issuance of a new page on the DOL website called “Misclassification Mythbusters.” We...more

NLRB Finds Temp Agency Joint Employer with User of Labor Services

In recent years, the National Labor Relations Board (NLRB) has begun finding separate companies jointly liable for compliance with federal labor laws under a joint or co-employment theory. Most notably, the Board has...more

Tilting the Battlefield: NLRB Makes It Easier For Unions To Challenge Use Of Permanent Replacements

The National Labor Relations Board (“Board”) recently denied review of its ruling in American Baptist Homes. That ruling upended the decades-old bright line test that an “independent unlawful purpose” is established only when...more

NLRB Upends Traditional Backpay Formula Providing Potential Windfall to Employees

In calculating backpay owed to former employees the National Labor Relations Board (NLRB) has concluded were wrongfully terminated, the Board has historically deducted any interim earnings. In calculating interim earnings,...more

NLRB General Counsel Seeks To Regulate and Target Employers with Independent Contractors

Seyfarth Synopsis: NLRB General Counsel releases an Advice Memorandum finding that the misclassification of independent contractors amounts to a standalone violation of Section 8(a)(1) of the NLRA....more

NLRB General Counsel Creates a “Misclassification-Plus” Unfair Labor Practice

On August 26, 2016, the National Labor Relations Board made public an Advice Memorandum from the NLRB’s Office of General Counsel regarding an unfair labor practice case arising in the context of independent contractor...more

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