News & Analysis as of

Goodbye Precedent, Hello Forced Speech?

The NLRB continues to push for a share of the employment law spotlight. It also continues to act in a way that shows why its “precedent” is truly only “precedent” when the political winds don’t change. ...more

NLRB Considers Radical Changes to Decades-Long Precedent on Deferral to Arbitration

In yet another attempt to expand protection for employees under Section 7 of the National Labor Relations Act, the National Labor Relations Board (NLRB) is considering a new standard for deferral to labor arbitration that, if...more

Fifth Circuit Agrees With NLRB That Employer Cannot Prohibit Wage Discussions

The National Labor Relations Board has long held that employers cannot prohibit employees from sharing salary information among themselves. Last month, the Fifth Circuit Court of Appeals upheld an expanded NLRB ban on...more

That Persnickety and Persistent NLRB

As has been reported in previous editions of the Health Law Update, National Labor Relations Board (NLRB)-watching now is a required activity for all employers—union and nonunion alike. On February 25, 2014, NLRB General...more

Act Now Advisory: Overbroad Handbook Policies May Constitute Unfair Labor Practices

At-will disclaimers in employee handbooks may provide protection from contract claims, but a recent decision by a National Labor Relations Board ("NLRB") Administrative Law Judge ("ALJ") serves to remind employers that the...more

Redefining the Power of Arbitration in Unfair Labor Practice Cases: NLRB Solicited Briefs on the Issue

In line with recent efforts in the courts to define the scope of power of the arbitral forum, the National Labor Relations Board (NLRB) recently took on the issue of whether to modify the standard it applies to determine...more

Is the NLRB’s Obsession with “Default Language” in Informal Settlement Agreements Waning?

The 2011 decision of the former Acting General Counsel of the National Labor Relations Board (NLRB) to mandate inclusion of “default language” in every informal unfair labor practice settlement agreement (General Counsel...more

NLRB Partners With The U.S. Department Of Justice To Address Unfair Labor Practices And Employment Discrimination

This summer, the U.S. Department of Justice announced that the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) signed a Memorandum of Understanding (“MOU”) with the National Labor...more

Back To The Drawing Board For The Board

On January 6, 2014, the National Labor Relations Board (NLRB) announced that it would not seek Supreme Court review of two federal appeals court decisions striking down the NLRB's rule requiring employers to display "Employee...more

Fifth Circuit Permits Class Action Waivers In Arbitration Agreements

The Fifth Circuit Court of Appeals recently handed a victory to employers in D.R. Horton, Inc. v. National Labor Relations Board, 12-60031, 2013 W.L. 6231617 (5th Cir. Dec. 3, 2013), reversing an Order of the National Labor...more

Arbitration Agreements Can Be Used to Avoid Class Claims Under Labor Laws

Employers can avoid class claims by entering agreements that require individual arbitration, but they should review those agreements to ensure that they contain clear exceptions for employees’ right to pursue unfair labor...more

Not So Fast, My Friend! Eleventh Circuit Weighs In On NLRB Recess Appointment Issue

As we previously reported, the United States Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) struck down President Barack Obama’s “recess appointments” of three members of the...more

Finally, For The First Time In Over A Decade, The National Relations Labor Board Has Five Senate-Confirmed Board Members

Those active in labor law are familiar with the political chaos that has surrounded the National Labor Relations Board (NLRB) since this past January. In six months, the NLRB went from being the subject of a Circuit Court...more

NLRB marches forward with its prohibition on blanket confidentiality in HR investigations

Extending on National Labor Relations Board (NLRB) precedent, on July 26, 2013, Administrative Law Judge Jeffrey D. Wedekind ruled that The Boeing Company's human resources (HR) investigation confidentiality policy violated...more

A Bell Is Un-Rung: It’s “Never” too Late to Update the Handbook

Regularly updating your employee handbook is not just a good practice, but it is of particular importance given the recent scrutiny of handbook language by the Acting General Counsel (AGC) of the National Labor Relations...more

Federal Appeals Court Strikes Down NLRB Notice Rule

In a major victory for employers on May 7th, the U.S. Court of Appeals for the District of Columbia struck down the National Labor Relations Board’s (“NLRB”) August 2011 regulation requiring private businesses to post an...more

D.C. Circuit Tells NLRB "No Workplace Poster for You!"

Many would contend that inherent in the freedom of speech is the freedom to decide when not to speak such that the government, as the argument goes, cannot compel one to say or otherwise disseminate certain information....more

D.C. Circuit Invalidates NLRB’s Notice Posting Rule

In yet another blow to the National Labor Relations Board (NLRB), today the D.C. Circuit Court of Appeals in National Association of Manufacturers v. National Labor Relations Board reversed an earlier ruling of the U.S....more

D.C. Court Of Appeals Vacates NLRB Notice Posting Rule

A federal appellate court yesterday rejected the National Labor Relations Board’s “notice posting rule” that would have required nearly 6 million employers to conspicuously display the Board’s employee-rights poster. Last...more

Employment Flash - February 2013

In This Issue: - Ohio Supreme Court Reverses Decision on Surviving Merger Entity’s Ability to Enforce Noncompetition Agreements - “Sweet” Decision for California Employers: Court Approves Time Rounding in Case...more

NLRB’s Actions in 2012 Highlight Critical Labor Issues for Nonunion Employers

In 2012, the National Labor Relations Board (NLRB or Board) aggressively staked out positions on employment policies and practices prevalent in both union and nonunion workplaces. These issues include social media policies...more

NLRB Issues New Guidance on At-Will Disclaimers

The Office of the General Counsel (GC) of the National Labor Relations Board (NLRB or Board) recently issued two advice memoranda that shed some light on the legality of employers’ “at-will” disclaimers in employee handbooks...more

NLRB Overrules Longstanding Precedent, Provides Opportunity For Unions To Obtain Confidential Witness Statements Used In Internal...

Since 1978, employers had not been required to disclose witness statements provided in internal investigations to unions deciding whether to pursue various grievances. All that changed last week when the NLRB overturned its...more

National Labor Relations Board Expands the Duty to Respond to Union Requests for Information in IronTiger Logistics, Inc.

The National Labor Relations Board (NLRB or the Board) continues to force new requirements upon employers from all directions. The Board might say that its new requirements represent an effort at increased civility and common...more

NLRB Looks Back on FY 2012

On October 16, 2012, the National Labor Relations Board (NLRB or Board) issued a report on its decisions and activities during fiscal year (FY) 2012, which ended on September 20, 2012. In sum, the Board reported that it...more

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