The National Labor Relations Board 2018 Year In Review – An Overview of Major Developments in Labor Law

McNees Wallace & Nurick LLC


Although in many respects it was a slow year for the National Labor Relations Board, it was a year of progress in the eyes of many employers.  The Board operated at full strength for the entire year, with Republican John Ring as the Chairman.  In addition, certain key initiatives were undertaken by the Board’s General Counsel, Peter Robb, a Republican.  2018 also brought with it some groundbreaking developments from the courts.

In Fiscal Year 2018, the Board received 18,871 unfair labor practice charges, which resulted in 1,088 complaints.  Those complaints resulted in $54 million in back pay awards and 1,270 offers of reinstatement.  The Board also handled 1,597 election petitions, which resulted in 1,190 elections.  In those elections, the union prevailed 790 times, or about 70.5 percent of the time.

Although the Board did issue a number of employer-friendly decisions, including a few that reversed some controversial Obama-era decisions, Chairman Ring signaled an intention to rely more on the rulemaking process to establish the policies and procedures of the Board.  The rulemaking process, although more time consuming, allows for public comment.  Rulemaking also often provides more guidance, because the Board can include explanatory comments with the rules.  Consistent with this new approach, the Board announced its intention to review the previously adopted election rules and to establish a joint employer test via rulemaking.

Although these processes will take time, many employers are hopeful that patience will pay off and the results will be more consistent and transparent rules governing the workplace.  In addition, employers are hopeful that 2019 will bring more employer-friendly decisions.  We summarize key labor law developments from 2018 below.

Major Board Initiatives

No Progress on Quickie Election Rules

In December 2018, the Board published a Request for Information related to the “Quickie” or “Ambush” election rules issued and adopted in 2014.  The rules, which significantly shorten the period of time between the filing of a petition for election and the actual election date, were clearly intended to aid union organizing efforts.  Our 2017 Year in Review, available here, summarized the Board’s process for studying the rules.  Despite announcing its intention to examine the Quickie election rules, the Board has not taken significant action on this issue as of the date of this year’s Review.

Joint Employer Standard Takes Step Forward, Two Back

In 2015, the Obama Board issued a decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (2015), and vastly expanded the situations in which a franchisor or another employer could be deemed a joint employer with its franchisee or with a supplier of a contingent workforce (e.g., temporary staffing agency).  With joint employer status comes joint employer liability, and potentially, the obligation to bargain.

Under the Browning-Ferris standard, an employee or group of employees would only need to demonstrate some reserved ability by the franchisor or source employer to potentially control the terms and conditions of the other entity’s employees.  To the relief of employers, Browning-Ferris was quickly appealed to the United States Court of Appeals for the D.C. Circuit.  In the meantime, in December 2017, the Trump Board decided Hy-Brand Industrial Contractors, 365 NLRB 156 (2017) and announced that it would return to the prior standard that required proof of a joint employer’s actual exercise of control over essential employment terms, rather than merely having reserved the right to exercise control.  After Hy-Brand was issued, Browning-Ferris was no longer relevant, so the Court of Appeals remanded that appeal back to the Board.

Then, in a strange twist, in late February 2018, the Board issued an Order vacating Hy-Brand based on a determination by the Board’s Ethics Official that one of the three Members who participated in the matter should have been disqualified.  With that disqualification no Board quorum existed.  Then, things got confusing.  The Board asked the Court of Appeals to step back in, recall Browning-Ferris, and issue a decision.

On April 6, 2018, the Court of Appeals granted the Board’s request and recalled Browning-Ferris.  Then, at the end of the year, the court upheld the underlying Board decision.  The court agreed that in determining employment status, the key question is the common law principle of control, and it does not matter for this analysis if that control is “direct or indirect, exercised or reserved.”  Thus, according to the court, the NLRB’s 2015 decision was consistent with the common law and enforceable, unless overturned by the NLRB.  The decision, Browning-Ferris Industries of California v. National Labor Relations Bd., 911 F.3d 1195 (D.C. Cir. 2018), was not good news for many employers who use temporary staffing agencies or franchisees.  In addition, it appears to be inconsistent with the vacated Hy-Brand decision.  In the end, the impact of Browning-Ferris may be short-lived.

In September, consistent with its approach to some other critical issues, the Board announced an intention of proposed rulemaking to address the standard for determining joint-employer status.  Under the proposed rule, “an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.  Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.”

Chairman Ring’s comments accompanying the announcement are telling: “Whether one business is the joint employer of another business’s employees is one of the most critical issues in labor law today.  The current uncertainty over the standard to be applied…undermines employers’ willingness to create jobs and expand business opportunities.  In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be.”

General Counsel Clarifies Board’s Position on Employer Handbook Rules

The Board’s examination of employer policies has been a hotly debated topic and has been the subject of numerous challenges.  Back in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board held that an employer’s facially neutral handbook policy unlawfully interferes with employees’ rights under the National Labor Relations Act (“NLRA”) if employees could “reasonably construe” such policies to prohibit the exercise of those rights.  Unsurprisingly, the standard created a great deal of uncertainty because the lawfulness of a policy hinged on how it could be interpreted by employees instead of its plain language.

In a major victory for employers, the Board issued its decision in The Boeing Co., 365 NLRB No. 154 (2017) at the end of 2017, overturning Lutheran Heritage and replacing its standard with a more concrete test.  The Boeing rule holds that when evaluating an employer’s facially neutral policies which could potentially interfere with employees’ rights under the NLRA, the Board will consider: (1) the nature and extent of the potential impact on NLRA rights, and (2) legitimate justifications associated with the rule.  The Board also established three categories of work rules:  (1) Category 1 Rules, which are lawful to maintain either because they do not interfere with NLRB rights or because the potential adverse impact on protected rights is outweighed by the justification associated with the rule; (2) Category 2 Rules, which warrant individualized scrutiny on a case-by-case basis to determine lawfulness; and (3) Category 3 Rules which are unlawful to maintain, regardless of the justification behind them.

In 2018, the Board’s General Counsel issued a guidance memorandum clearly outlining the types of work rules that fall within each category.  The memorandum not only defines broad categories of rules that fit within each classification, but also provides sample policy language.  Examples of Category 1 Rules include policies relating to civility between employees, rules against recording and photography, rules prohibiting insubordination, and rules protecting confidential information.  Category 2 Rules include broad conflict of interest rules, rules prohibiting the disparagement of the employer, rules regulating the use of the employer’s name, and rules banning off-duty conduct.  Category 3 Rules include rules that prohibit disclosure of wages, benefits, or working conditions, rules against joining outside organizations, and rules prohibiting employees from voting on matters relating to the employer.

The General Counsel’s guidance is a roadmap for employers to establish lawful, and enforceable workplace policies and procedures.

General Counsel Pushes Prosecution of Fair Representation Cases

The General Counsel did not stop with workplace policies.  Instead, the GC offered additional guidance directed at unfair labor practice charges against unions themselves.  Unions are obligated to represent their members fairly by engaging in conduct that is not arbitrary, discriminatory, or undertaken in bad faith.  This obligation is known as the duty of fair representation.  Oftentimes when unions are accused of mishandling a member’s grievance or some other malfeasance, they are quick to point out that the duty of fair representation is not breached by “mere negligence.”  In October 2018, the Board’s General Counsel sent a strong message to unions that negligence defense may not be as easy to assert as it once was.

In an internal directive, the General Counsel directed the Board’s field offices to require unions accused of breaching their duty of fair representation to produce evidence of internal practices and protocols designed to prevent negligent mistakes such as losing track of grievances, failing to communicate with a member about a grievance, or other negligent conduct.  In other words, citing the “mere negligence” defense may no longer be enough for a union to avoid an unfair labor practice charge.  Instead, unions will be asked to demonstrate policies and procedures in place to prevent such “mistakes.”

Board Announces Intention to Review Email Rule

Another Obama-era National Labor Relations Board policy may be on the ropes.  Five years ago, the Board issued its controversial Purple Communications, 361 NLRB 126 (2014) decision.  In that case, it determined that employees have the right to use employers’ email systems to unionize and engage in other activities protected under the NLRA.

On August 1, 2018 the Board approved an invitation to file briefs on whether Purple Communications should be modified or overruled altogether.  Some interpret this approval as a signal that employees’ ability to use their employer’s email systems to unionize and engage in non-business, protected activity could soon be in jeopardy.

In other words, another employer-friendly NLRB ruling could be on its way.

Board Reinstates Test for Examining “Concerted” Under NLRA

In Alstate Maintenance LLC, 367 NLRB 68 (2019), the Board clarified the definition of “concerted” under the National Labor Relations Act, and reiterated that individual employee complaints or gripes are not “concerted” activity under the Act.  Before we look at Alstate, let’s take a step back and look at what Section 7 of the Act does protect.

Section 7 of the Act may be its most important provision, and certainly the area that gets the most attention and litigation.  Section 7 provides employees with the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In order to be protected, employee activity must be “concerted” and engaged in for the purpose of “mutual aid or protection.”  These terms have been examined extensively by the Board and the courts.

The definition of “concerted” for example, has been argued about countless times.  For many years, nearly three decades, the Board used a consistent standard to review whether an employee’s activities were “concerted”  The standard is known as the Myers Industries standard, and it is named after a series of cases that date back to the 1980s.  Essentially, under Myers Industries, concerted activity is defined as (1) group action or action on behalf of other employees; (2) activity seeking to initiate or prepare for group activity, or (3) bringing a group complaint to the attention of management.  Individual grips or complaints were not protected.

The Board modified the last part of this test in 2011 when it issued its decision in WorldMark by Wyndham, 356 NLRB 765 (2011), which held that lodging a complaint in a group setting and using the term “we” qualified as concerted activity.  This decision essentially held that an individual complaint in a group setting qualified as “concerted” activity.

Alstate reversed WoldMark by Wyndham and reinstated the Myers Industries test set forth above.  In Alstate, the Board said that a complaint in a group setting, alone, is not enough to satisfy that test.  The Board clarified that for an employee’s statement to qualify as a group complaint, the statement must be a complaint regarding a workplace issue and the circumstances must make it clear that the employee was seeking to initiate or induce group action.  In other words, an individual gripe does not qualify as concerted activity, even if it takes place in front of other employees.

Significant Court Decisions Impacting Labor Law

In 2018, some key Board decisions were reviewed on appeal.  In addition, the courts issued key decisions that will have a significant impact on labor law in the years to come.  The key decisions are summarized below.

SCOTUS Rules Individual Arbitration Agreements Lawful

In May, the Supreme Court of the United States ruled that arbitration agreements, which waive the right to proceed as part of a class or collective action, are enforceable in the employment context.  In Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Court held that employment agreements that require individualized arbitration proceedings to resolve workplace disputes are lawful.

In a series of cases, employees and former employees had asserted that agreements requiring individual arbitration violate the NLRA, because the NLRA protects employee rights to proceed in class or collective actions.  Although it had taken a different position in 2012, the Board agreed that arbitration agreements, which waive the right to proceed in class or collective actions, violate the NLRA.  The Board’s controversial position was set forth in D.R. Horton, 357 N.L.R.B. 2277 (2012) and Murphy Oil USA, 361 NLRB 774 (2014).

Employers countered that the Federal Arbitration Act expresses a strong preference for arbitration and makes clear that arbitration agreements are presumptively valid.  The FAA requires that courts enforce arbitration agreements, including procedural terms related to the arbitration process itself.  The FAA does provide that arbitration agreements will not be enforced if there is a legal basis to set aside the agreement, such as fraud or duress in the making of the contract.  However, in this case, the only argument presented was that the individual arbitration agreements violate the NLRA.

The Supreme Court rejected that contention, holding that the FAA requires enforcement of arbitration agreements, including agreements that call for individual proceedings.  The Court noted that in order for a law such as the NLRA to trump the FAA, there must be a clear statement of intention in the law.  The Court found no such clear intention in the NLRA.  The Supreme Court’s decision is the law of the land, and that means that arbitration agreements in the employment context that require individualized claims are lawful.

SCOTUS Rules Fair Share Fees Unconstitutional

In June, the Supreme Court issued its long-awaited opinion in Janus v. AFCSME, 138 S. Ct. 2448 (2018), which held that requiring public sector employees to pay fair share fees to unions violates the First Amendment.  A fair share fee (sometimes called an agency fee) is a fee that non-union members must pay to the union to cover the expenses incurred by the union while representing bargaining unit employees.  Until Janus, fair share fees were legal in most states, and required by many collective bargaining agreements.

This was true despite the fact that the employees paying the fees had intentionally opted not to join the union, because the union still had a legal obligation to represent all employees within the bargaining unit, regardless of whether the employee was a member of the union.  These laws became common after the Supreme Court issued its 1977 opinion Abood v. Detroit Bd. of Educ., 97 S. Ct. 1782 (1977), which held that fair share fees were constitutional and maintained labor peace by preventing “free riders.”  However, in recent years, there have been a number of challenges to the constitutionality of fair share fees and the validity of Abood.

Those challenges came to a head in Janus.  Ultimately, the Court ruled that fair share fees violate public sector employees’ right to free speech.  As a basic premise, the Court recognized that the right to free speech includes the right to refrain from speaking at all.  Thus, “[c]ompelling individuals to mouth support for views they find objectionable violates the cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”  Accordingly, forcing employees to pay fair share fees (i.e., compelling employees to speak in support of the union when they may otherwise remain silent) violates the First Amendment.

The end result of the Court’s holding is clear: fair share fees are unlawful, and unions must have an employee’s consent before withholding any dues, fees or other assessments from employee wages.

Third Circuit Holds Union Membership Worthy of Constitutional Protection

In another case examining constitutional protections for employees, the Third Circuit Court of Appeals held that a public employer violates the First Amendment of the United State Constitution when it retaliates against an employee based on the employee’s union membership.  In reaching its conclusion, the court distinguished between First Amendment “free speech” claims and First Amendment “association” claims.

Palardy v. Township of Millburn, 906 F.3d 76 (3d. Cir. 2018), involved a claim by a former police officer who alleged that the Township refused to promote him to Chief because of his affiliation with the police officers’ union.  In support of his claim, the former officer presented testimony that the Township’s business administrator made a number of derogatory comments about his role as a union leader.  Interestingly, the former police officer retired before the Chief position actually became vacant, because he believed that he would not be selected for the position.

The Township argued that union affiliation is not a matter of public concern, and therefore not protected by the First Amendment.  The trial court agreed, holding that speech on behalf of the union and association with the union were not constitutionally protected conduct.  On appeal, the Third Circuit analyzed and rejected the trial court’s opinion, which also happened to be the same opinion reached by the majority of other circuit courts throughout the United States.

Instead, the Third Circuit adopted the minority view, and concluded that union affiliation is protected by the First Amendment freedom of association clause.  The Court agreed with the Fifth Circuit, which had previously held that the union activity of public employees is always a matter of public concern, and therefore, no additional proof is necessary to establish that the union affiliation is protected.

Accordingly, when an association claim arises from a public employee’s union affiliation, the employee or former employee need not establish that his association was a matter of public concern or that any specific free speech issues are implicated.  Keep in mind that First Amendment claims still require that the plaintiff establish three things: (1) that he engaged in constitutionally protected conduct; (2) that the defendant engaged in retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a causal link between the protected conduct and the retaliatory action.  In Palardy, the court only considered the first question, finding conclusively that union-affiliation is constitutionally protected conduct.  The court remanded the case for consideration of the additional two elements.

Only time will tell if the Supreme Court will step in and provide a consistent, nation-wide test for determining whether union activity is protected by the Constitution of the United States.


2017 was marked by a flurry of Board activity, but developments in 2018 came at a slow trickle.  Nonetheless, there were a number of significant labor law developments last year, and a good number were employer-friendly.  The Trump Board continued to reverse some of the Obama Board decisions and began the process to reverse some others.  Although the rulemaking process may take more time, the hope is that this approach will bring more consistency and transparency, which will bring greater ease of compliance for employers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McNees Wallace & Nurick LLC | Attorney Advertising

Written by:

McNees Wallace & Nurick LLC

McNees Wallace & Nurick LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.