Q. May employees use abusive language when raising grievances about working conditions?

A. In many circumstances, the answer is (again) yes. On May 1, the National Labor Relations Board (NLRB or Board) overruled its July 2020 decision that changed the standard for cases involving “abusive employee conduct” during labor disputes and negotiations, reverting back to a test that it used in some form or another for approximately 70 years. In its decision, the NLRB found that an employee did not lose National Labor Relations Act (NLRA) Section 7 protections when he used strong language and acted less than civil when raising grievances about working conditions.Continue Reading NLRB Returns to Former Precedent on Protected Union Activity

Published in Law360 on January 20, 2023. © Copyright 2023, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

Earlier this month, President Joe Biden signed into law the Protecting American Intellectual Property Act,[1] which aims to protect U.S. intellectual property by imposing sanctions on companies and individuals involved in trade secrets theft.Continue Reading Water Cooler Talk: Trade Secret Lessons From ‘Severance’

Q: Does federal antitrust law bar independent contractors from engaging in a group boycott to increase wages and alter conditions of employment?

A: No. The First Circuit Court of Appeals recently held that an individual’s independent contractor status does not bar application of the labor-dispute exemption to antitrust law, which exempts collusion among potential competitors for the purpose of increasing wages or improving conditions of employment.Continue Reading First Circuit Holds Antitrust Labor-Dispute Exemption Applies to Independent Contractors’ Protest Activities

Q: Now that DOL-OSHA announced its COVID-19 vaccine ETS for private-sector workers, what does my company need to do to adhere to the guidelines?

A: On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS), containing the anticipated COVID-19 vaccination rule covering private companies with 100 or more employees. The ETS became effective immediately on November 5 upon its publication in the Federal Register. On November 6, the Fifth Circuit Federal Court of Appeals granted an emergency motion to stay enforcement of the ETS effectively nationwide, pending further action by the court, which could come as early as November 9 at 6 p.m. ET. Other challenges to the ETS’s enforcement have been filed in the Eighth, Sixth, and Eleventh circuits thus far.Continue Reading DOL-OSHA Announces New COVID-19 Vaccine ETS for Private-Sector Workers

Q: Who are the newest members of the National Labor Relations Board (NLRB), and what does their arrival mean for the future of micro-units?

A: Party control of the National Labor Relations Board recently shifted to the Democrats when the Senate approved two Biden appointees. In August, longtime union-side attorneys Gwynne Wilcox and David Prouty joined fellow Democrat Chairman Lauren McFerran and Republican appointees John Ring and Michael Kaplan on the five-member board.Continue Reading New NLRB Members Could Heighten Burden for Employers Seeking to Challenge “Micro-Units”

Q: What does the latest decision on joint employer liability mean for businesses?

A: On September 8, 2020, the United States District Court for the Southern District of New York issued a decision overturning the U.S. Department of Labor’s (DOL) March 2020 Final Rule, which had adopted a narrow four-factor test for determining joint employer liability in “vertical” employment relationships, such as contractor/subcontractor, franchisor/franchisee and company/staffing agency relationships. The test set forth in the Final Rule looked at whether the putative joint employer (i) hires or fires the employee; (ii) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (iii)  determines the employee’s rate and method of payment; and (iv) maintains the employee’s employment records. These factors looked to the degree of control as the standard for determining joint employment, which was a sharp departure from prior DOL guidance which looked more broadly at the economic dependence between the parties.
Continue Reading Southern District of New York Judge Strikes Down Department of Labor Standard for Joint Employment

Troutman Sanders and Pepper Hamilton officially became Troutman Pepper (Troutman Pepper Hamilton Sanders LLP), a national law firm of 1,100 attorneys in 23 U.S. offices. Our new firm offers clients greater resources and bench strength, enhanced practices, and expanded geographical reach.

We are now one of the 50 largest law firms in the country, with

Authors
Richard Gerakitis, Partner, Troutman Sanders
Emily E. Schifter, Associate, Troutman Sanders
Susan K. Lessack, Partner, Pepper Hamilton
Tracey E. Diamond, Of Counsel, Pepper Hamilton
Lee E. Tankle, Associate, Pepper Hamilton

Hot on the heels of the temporary rule issued April 1, 2020 regarding the Families First Coronavirus Response Act, the Department of Labor’s

Since we first covered it a few weeks ago, the outbreak of coronavirus (COVID-19) has had an unprecedented impact and is no longer simply making headlines. It has now begun interrupting the flow of business – impacting financial markets, disrupting travel plans, and forcing the cancellation of meetings and events. (To the great disappointment of