The Debate About College Athletes as Employees Moves to the National Labor Relations Board

On January 28, 2014, players on the Northwestern University football team filed a petition with the National Labor Relations Board ("NLRB") seeking union representation. The petition is the first of its kind and, if successful, the Northwestern football team would be the first group of college...

Non-Union Employers Should Pay Attention to the NLRB - Here's Why

The National Labor Relations Board has taken the position that many garden-variety employment policies violate the law. These rulings place employers in a “ Catch 22 ”—if employers rescind the policies, they could have trouble defending themselves in unemployment cases, wrongful termination...

The National Labor Relations Board 2013 Year in Review - An Overview of the Board’s Significant Actions

by Bruce Bagley and Adam Santucci Introduction From the looks of it, 2013 was a very rough year for the National Labor Relations Board (Board). Last year , we reported that the Board would face some serious legal battles in 2013. Some of those battles are over, and there are clear winners and losers...

NLRB Looks to Expand Reach With Latest Enforcement Priorities

Late last month, the new NLRB General Counsel, Richard Griffin, published a memo ( GC 14-01 ) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that will...

Student Athletes Could…Go…All…The…Way…to the Bank

On Wednesday, the Regional Director for the Chicago Region of the National Labor Relations Board ("NLRB") ruled that football players receiving scholarships from Northwestern University are "employees" for the purpose of the National Labor Relations Act ("NLRA"). This ruling...

It’s Okay to “Gossip” in the Workplace, as Long It’s Not “Negative,” Says the NLRB

Earlier this year , I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications. In Hills & Dales General Hospital [pdf] [ an enhanced version of this decision is available...

Abbey Spanier LLP: 3rd Circuit Joins 7th, 9th Circuits Holding That Federal Common Law Standard For Successor Liability Applies To FLSA Claims

Last week, the Third Circuit issued a precedential decision holding that the federal common law standard for successor liability is applicable to claims brought under the Fair Labor Standards Act [ enhanced opinion available to lexis.com subscribers ]. The plaintiff filed a class and collective action...

NLRB Judge Gives Booby Prize to Hooters' Workplace Policies

In Hooters of Ontario Mills [pdf] , an NLRB Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed [ an enhanced version of this opinion is available to lexis.com subscribers ]. In the same...

NLRB Judge Holds That Even Individual Acts Can Constituted Protected Concerted Activity

Webster’s Dictionary defines “concerted” as, “done in a planned and deliberate way usually by several or many people; mutually contrived or agreed on.” Given this definition, I was surprised when I read a decision by an NLRB Administrative Law Judge, which held that a lone...

SCOTUS on NLRB Recess Appointments

At long last, the Supreme Court's opinion in NLRB v. Noel Canning is here ! It's a long opinion and will take some time to analyze, but here's my first take: The Court is unanimous in concluding that Obama's NLRB recess appointments were unconstitutional - he lacked the authority under...

U.S. High Court Nixes President’s Recess Labor Board Appointments

WASHINGTON, D.C. — (Mealey’s) The U.S. president may fill any existing vacancies of “officers of the United States,” whether occurring before or during a recess, under the “recess appointments clause” of the Constitution, Article II, Section 2, Clause 3, during any...

Supreme Court Holds NLRB Recess Appointments Invalid. Chaos Ensues?

Yesterday morning, in NLRB v. Noel Canning , the U.S. Supreme Court held that President Obama exceeded his authority in making recess appointment to fill vacancies on the NLRB in 2012. A copy of the opinion is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdf [lexis.com subscribers...

Noel Canning: Now What?

Noel Canning has been decided; the Supreme Court invalidated President Obama's NLRB recess appointments. Approximately 436 decisions were issued over the 18 month period by the "recess" Board. So now what? Chaos? The Board won't function? Probably not. The aftermath of the Supreme Court's...

NLRB Ratifies Actions of Noel Canning-Era Board

Remember when the Supreme Court held that President Obama's "recess appointments" to the NLRB were actually not recess appointments and therefore unconstitutional (i.e. Noel Canning )? Well, now the NLRB has some cleaning up to do. Yesterday, the NLRB issued a press release explaining that...

McNees Wallace & Nurick: "Micro-Units": NLRB Eases The Way For Union Organizing

by Bruce D. Bagley Even the most casual of observers would have to be wearing blinders not to notice the extraordinary efforts made by the Obama Administration to make it easier for labor unions to organize the non-union workforce. From its promotion of the Employee Free Choice Act (EFCA), which was...

Apparently, “Information Security” Is Now an Unfair Labor Practice

In Fresh & Easy Neighborhood Market (7/31/14) [pdf] [an enhanced version of this opinion is available to lexis.com subscribers] , the NLRB examined the following “Confidentiality and Information Security” policy: We have an important duty to our customers and our employees to respect...

Facebook Firing Causes Unfair Labor Practice Double Play For NLRB

In Triple Play Sports Bar & Grille [pdf] , the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive [an enhanced version of this...

Loyalty: Extinct Under the NLRA?

Section 8.01 of the Restatement Third of Employment Law states that employees owe a duty of loyalty to their employers in matters related to the employment relationship. Employers realize that under the Obama Board, the inclusion of that statement would violate the act because it is overly broad and...

Senate Committee Holds Hearing on Nomination of Sharon Block to be a Member of the NLRB

On September 9, 2014, the U.S. Senate’s Health, Education, Labor and Pensions Committee (HELP) conducted a hearing on the nomination of Sharon Block, a Democrat, to once again be a Member of the National Labor Relations Board. She was nominated to take the place of Nancy Schiffer, a Democrat, who...

The NLRB’S Designs to Re-Define Joint Employer

by Todd L. Sarver Are you a franchisor? Do you have contractors? Do you use a staffing agency? Do you outsource functions (food service, cleaning, security, etc.)? Do you have affiliate corporate entities you established to operate separately? Do you have a vertically integrated operation? If you...

Senate Committee to Hold Confirmation Hearing on McFerran NLRB Nomination

The U.S. Senate’s Health, Employment, Labor and Pensions Committee (HELP) has set a full committee hearing for November 20, 2014, on the nomination of Lauren McFerran to be a Member of the National Labor Relations Board. She was just nominated by the President on November 12, 2014. Assuming...

Democrat McFerran Approved by Senate HELP Committee to Be NLRB Member

On December 2, 2014, the Senate Health, Education, Labor, and Pensions (HELP) Committee approved the nomination of Democrat Lauren McFerran to serve as a Member of the NLRB. Her nomination now goes to the Senate floor for consideration. It would appear she will be confirmed during the lame duck session...

NLRB Hits Employers Facing Union Organizing With a One-Two Punch

On December 12, 2014, the National Labor Relations Board ("NLRB") dealt employers facing union organizing a blow by adopting the controversial “quickie election” rule. The rule amends the pre-election procedures and processes for conducting a representation election to determine...

Business Groups Challenge Constitutionality of NLRB “Ambush” Election Rule

by Jami K. Suver On December 15, 2014, slightly less than three years after the NLRB’s first thwarted attempt, a final rule (the “2014 Final Rule”) reducing the time between the filing of an election petition and holding workplace union representation elections was published in the...