Peter Finch at Davis Wright Tremaine LLP

NLRB's New Joint-Employer Standard Drastically Increases Potential Liability for Businesses Employing Third Parties

The National Labor Relations Board (NLRB or Board) released its Final Rule on October 26, 2023, drastically expanding the circumstances under which separate entities could be considered joint employers. Under the Final Rule,...more

11/10/2023 / Browning-Ferris Industries of California Inc. , Final Rules , Joint Employers , Liability , NLRA , NLRB , Notice of Proposed Rulemaking (NOPR) , Third-Party

OSHA Rule Could Allow Union Representatives to Join Inspections – Even at Non-Unionized Worksites

The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) has proposed revisions to the existing rules governing who can participate in OSHA's onsite workplace inspections. The purpose of these...more

11/3/2023 / Inspections , New Rules , NLRB , Non-Union , Notice of Proposed Rulemaking (NOPR) , OSHA , Third-Party , Unfair Labor Practices , Unions , Workplace Investigations , Workplace Safety

Non-Union Employers Face Triple Threat: Unfair Labor Practice Charges, Unionization, and Bargaining Orders

The National Labor Relations Board has released more statistics that further confirm what labor lawyers suspected: Employers are subject to more unfair labor practice charges, Employees and labor organizations are...more

10/20/2023 / Bargaining Power , Collective Actions , Employment Discrimination , Hours of Service , NLRA , NLRB , Non-Union , Retaliation , Social Media , Strike , Unfair Labor Practices , Unions , Wages , Working Conditions

NLRB General Counsel Moves to Invalidate Noncompete Agreements

On May 30, 2023, the General Counsel of the National Labor Relations Board, Jennifer Abruzzo, issued Memorandum GC 23-08, setting forth her view that noncompete provisions in employment contracts and severance agreements...more

6/2/2023 / Employees , Employer Liability Issues , Employment Contract , Intellectual Property Protection , NLRA , NLRB , NLRB General Counsel , Non-Compete Agreements , Restrictive Covenants , Section 7

NLRB Makes It Significantly Harder for Employers to Issue Discipline for Workplace Outbursts

Lion Elastomers Revives a "Setting-Specific" Standard That Is Again Likely to Lead to Arbitrary Results and Conflicting Obligations Under Various Statutes - After the National Labor Relations Board's recent decision in...more

5/9/2023 / Disciplinary Proceedings , Employee Misconduct , Employees , Employer Liability Issues , Employment Litigation , NLRA , NLRB , Policies and Procedures

NLRB Makes It Significantly Harder for Employers to Issue Discipline for Workplace Outbursts - Lion Elastomers Revives a...

After the National Labor Relations Board's recent decision in Lion Elastomers LLC II, employers must now carefully navigate two "fundamentally different" classes of employee misconduct: 1) "misconduct during ordinary work,"...more

5/9/2023 / Discipline , Employer Liability Issues , NLRA , NLRB , Protected Concerted Activity

NLRB Announces Willingness to Impose Extraordinary Remedies for Repeat Offenders - Board's Decision in Noah's Ark Processors...

On March 20, 2023, the National Labor Relations Board issued a decision in Noah's Ark Processors, LLC, d/b/a WR Reserve, 372 NLRB No. 80 (2023). The Board's decision follows a memorandum issued by National Labor Relations...more

5/2/2023 / Collective Bargaining , Employer Liability Issues , NLRA , NLRB , Unfair Labor Practices , Unions

GC Abruzzo Continues Her Assault on NLRB Decisions She Believes Are Too Employer Friendly

In a memo released March 20, the National Labor Relations Board's General Counsel, Jennifer Abruzzo, updated her remaining prosecutorial priorities, identifying the kinds of cases she wants regional offices to send her for...more

3/27/2023 / Employee Rights , Employer Liability Issues , NLRB , NLRB General Counsel , Protected Concerted Activity , Section 7

NLRB General Counsel Offers Roadmap for Severance Agreements, But Employers Might See a Dead End

The General Counsel of the National Labor Relations Board, Jennifer Abruzzo, issued a memo setting forth her views regarding the future of severance agreements in the wake of the Board's recent decision in McLaren Macomb....more

3/27/2023 / Confidentiality Agreements , Employer Liability Issues , NLRB , NLRB General Counsel , Non-Disparagement Provisions , Section 7 , Severance Agreements , Unfair Labor Practices

NLRB Rules Against Severance Agreements Deemed Overly Broad in McLaren Macomb Decision

Employers should take a fresh look at all of their severance agreements they have with former employees, or would typically propose to employees, following last week's decision of the National Labor Relations Board (the...more

3/3/2023 / Confidentiality Agreements , Employer Liability Issues , NLRA , NLRB , Non-Disclosure Agreement , Non-Disparagement Provisions , Section 7 , Severance Agreements

NLRB Poised to Tip Scale in Favor of Disclosure of Employer Financial Information Based on Competitive Disadvantage Statements

In recent weeks, the National Labor Relations Board has issued several labor-friendly decisions, quickly checking off key items on General Counsel Jennifer Abruzzo's agenda. On November 30, 2022, the General Counsel released...more

12/30/2022 / Collective Bargaining , Corporate Counsel , Inability To Pay , NLRB , NLRB General Counsel , Popular , Unions

NLRB Proposed Standard Would Increase Potential Liability for Businesses Employing Third Parties

If a National Labor Relations Board proposed rule is implemented as drafted, businesses that contract with third parties to provide labor or services would face significantly more risk of being held jointly liable with these...more

9/19/2022 / Browning-Ferris Industries of California Inc. , Employer Liability Issues , Joint Employers , NLRA , NLRB , Staffing Agencies , Unions

Employers Beware: NLRB Special Remedies Are Becoming Extra Special

The National Labor Relations Board (NLRB) issues "make whole" remedies. What that entails is changing drastically. Because non-union employers will be disproportionately affected, the stronger remedies might come as an...more

2/16/2022 / Administrative Law Judge (ALJ) , Corporate Counsel , NLRA , NLRB , Unfair Labor Practices , Unions

In the COVID-19 Era, What Does Face-to-Face Collective Bargaining Mean?

I've bargained "virtually" several times, had pre-hearing conference calls via Zoom, and have had an arbitration by Zoom. My clients have mixed feelings about those experiences. Virtual bargaining has been particularly...more

9/14/2020 / Collective Bargaining , Contract Negotiations , Corporate Counsel , Employer Responsibilities , NLRB , Risk Assessment , Unions , Videoconference

NLRB Announces New Standard for Reviewing Discipline for Offensive and Abusive Conduct

Yesterday, the National Labor Relations Board (NLRB) in General Motors LLC announced a big win for employers by changing the standard under which it will evaluate discipline issued to employees who make abusive or offensive...more

7/22/2020 / Disciplinary Proceedings , Discipline , Discrimination , NLRA , NLRB , Protected Activity , Unions

NLRB Allows Employer Searches of Workers' Cars and Use of Communication Devices

In Verizon Wireless, decided June 24, 2020, the National Labor Relations Board held that employers have the right to search employees' personal property, including their vehicles, when on company premises. The Board also...more

7/8/2020 / Asset Protection , Corporate Counsel , Employee Monitoring , NLRB

NLRB Restores Employers Right to Discipline Workers Promoting Unions on Work Time

Employers have long been allowed to ban employee solicitations of union support in work areas on work time, but they cannot ban general discussion of unions or protected activity. The definition of what constitutes a...more

6/11/2020 / Corporate Counsel , NLRB , Solicitation , Unions

NLRB Reinstates Rule Permitting Confidentiality During Workplace Investigations

In welcome news to employers, the National Labor Relations Board (NLRB) issued a decision on December 19, 2019, holding that employer rules requiring employee confidentiality during the course of workplace investigations are...more

2/25/2020 / Boeing , Confidentiality Policies , Employee Rights , Employer Liability Issues , Employment Policies , NLRA , NLRB , Section 7 , Workplace Investigations

NLRB General Counsel Applies Rule of Reason to Workplace Rules

The National Labor Relations Board’s General Counsel Peter Robb (“GC”), through his office’s Division of Advice, recently provided welcome guidance to employers wanting to adopt, and enforce, some common (and common sense)...more

5/31/2019 / NLRA , NLRB , NLRB General Counsel , Section 7 , Unions

Reversing Precedent, NLRB Drops Consent Requirement for Mixed Bargaining Unit of Temporary and Regular Employees

On July 11, the NLRB continued the expansion of joint-employer liability set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015) by eliminating the requirement that a union receive the consent of both the...more

7/27/2016 / Bargaining Units , Browning-Ferris Industries of California Inc. , Collective Bargaining , Joint Employers , NLRB , Temporary Employees , Unions

Invalid NLRB Recess Appointments Mean Controversial Decisions Get a Second Look

In Noel Canning, the U.S. Supreme Court unanimously decided that President Obama’s January 2012 recess appointments to the National Labor Relations Board (“NLRB” or the “Board”) violated the Constitution. Non-union and union...more

7/2/2014 / Barack Obama , Canning v NLRB , NLRB , Non-Union , Recess Appointments , SCOTUS , Union Membership

NLRB Takes Another Run at “Quickie” Election Procedures

The National Labor Relations Board announced Wednesday that it is again proposing changes to its election procedures, ostensibly to “improve the process for all parties, in all cases, whether non-union employees are seeking a...more

2/7/2014 / Decertify , NLRB , Quickie Election Rules , Union Elections , Unions

Oregon Restricts Employers' Access to Private Social Media Accounts

Oregon recently joined numerous states in prohibiting employers from seeking access to employees’ or prospective employees’ private social-media accounts, personal email, and other online content....more

1/27/2014 / Employee Rights , Passwords , Social Media

Washington State Enacts Law Restricting Employers’ Access to Private Social Media Accounts

Effective July 28, 2013, Washington joined several states in prohibiting employers from seeking access to their employees’ or prospective employees’ private social-media accounts....more

8/9/2013 / Employer Liability Issues , Internet , New Legislation , Social Media , Social Media Policy

“Constitutionally Invalid” Recess Appointments Call NLRB’s Authority Into Question

A federal Circuit Court of Appeals decision last Friday in Noel Canning v. NLRB was front page news across the country for good reason. The court held that President Obama’s Jan. 4, 2012, “recess appointments” to the National...more

1/31/2013 / Barack Obama , Canning v NLRB , NLRB , Pro Forma Sessions , Recess Appointments

Peter Finch

Davis Wright Tremaine LLP

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