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As we all learned in school, the First Amendment to the U.S. Constitution prohibits Congress from making laws that “abridge the freedom of speech.”  Employer-created rules and decisions are not acts of Congress, of course, and are not subject to the First Amendment.  So, employers can terminate their at-will employees (all employees without an employment contract) for a good or even a bad reason, including having a bad attitude, right?  Wrong, according to the National Labor Relations Board, at least when that bad attitude expresses itself in voicing concerns about their job.

In another example of the National Labor Relations Board (“the Board”) reaching into a non-union employer’s workplace, it ordered dance production companies that run two Las Vegas shows (Vegas! The Show and The BeatleShow) to reinstate several dancers whose employment was terminated for performance and attitude problems that spanned several years of time.  David Saxe Prods., LLC, 364 NLRB No. 100 (Aug. 26, 2016).  In a letter to one of these employees, the owner of the production companies stated:

Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer.  In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur.  Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required.  Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization.

The Labor-Management Reporting and Disclosure Act requires labor organizations, consultants, and employers to file reports and disclose expenditures on labor-management activities. For over fifty years, the DOL has interpreted the provisions of the Act to require reporting only for what are known as “direct” persuasive activities, such as when employers hire consultants or attorneys to personally and directly deliver counter-union messages to employees. Under the Act, mere “advice” pertaining to persuasive activities is not reportable. The advice exemption permitted law firms and employers to avoid the reporting obligations since the law firms were not actually engaged in direct persuasion, but only in advice. However, in March of this year, the DOL set forth a Final Rule significantly broadening what is reportable by employers and consultants in an effort to require reporting on activities that have been viewed as “advice.” Significantly, the Northern District of Texas today issued an order preliminary enjoining the Department of Labor from enforcing its Final Rule until a lawsuit challenging the Final Rule can be fully litigated. Unless that preliminary ruling or other pending challenges to the Final Rule are successful and upheld on appeal, the Final Rule will apply to agreements entered into on or after July 1, 2016. Two important updates concerning the Final Rule are covered in this alert, one of which necessitates an employer taking action before July 1, 2016.

Employers want all employees to do their work and go home safely each day.  A workplace injury is bad news for everyone.  When OSHA or a similar state safety agency gets involved, it becomes an even bigger problem for employers.  That reality is even more true today as OSHA’s maximum fines have recently increased, and it has added new recordkeeping and reporting requirements that raise further concerns for employers.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s stated role is “to ensure [safe working] conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.”

While speaking at a conference this year, I asked members of the Human Resources community to raise their hands if they routinely instructed employees not to discuss internal investigations.  No surprise, most of the hands (maybe all of them) went up.

For many good reasons, most employers instruct employees to keep the fact of and contents of investigations confidential.  For example, when investigations become public, employees often become less willing to come forward and discuss the nature of the investigation.  Also, in most instances the nature of the investigation involves sensitive information, like a harassment complaint.  Yet, the National Labor Relations Board (NLRB) has indicated that reasons such as these are not legally sufficient to tell employees to keep their mouths shut.

In 2011, the U. S. Supreme Court issued a landmark decision regarding certification of employment discrimination class actions. The opinion, Wal-Mart v. Dukes, rejected the “trial by formula” approach of allowing a random sample of the class members’ claims to be tried, with the results of those trials to be applied to the entire class. Among other problems, the Court found that this shortcut approach deprived defendants of the ability to litigate statutory defenses to individualized claims. Dukes, however, did not reach the narrower issue of whether “representative,” “sample” or “anecdotal” evidence” is ever appropriate in a class-action employment case.

The National Labor Relations Board issued a landmark decision yesterday, reversing its precedent and establishing a new standard for determining when entities can be considered “joint employers” under the National Labor Relations Act. The 3-2 decision in Browning-Ferris Industries of California, Inc. held that Browning-Ferris, the owner and operator of a recycling facility, was a joint employer with its contractor, who provided workers (sorters, screen cleaners and housekeepers) to Browning-Ferris through a temporary labor services agreement. In its decision, the Board departed from its prior joint employer standard in significant ways. The new standard will make it much easier to establish a joint-employer relationship under the NLRA. Workers formerly excluded from union representation as non-employees could now be considered members of a collective bargaining unit with legal rights to negotiate terms and conditions of their employment through a union.

If you are a federal contractor subject to Section 503, then you are aware of the new regulations that were released in September 2013. While those regulations were released nearly two years ago, the most burdensome of these requirements (implementation of the Subpart C requirements) have not yet been implemented by most contractors because of the transition year period that allowed contractors to delay compliance with Subpart C. As contractors have been permitted to delay compliance, we have seen virtually no enforcement from OFCCP of the Subpart C requirements in audits. That is all about to change.

National_Labor_Relations_Board_logo_-_colorEarlier this year, on March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued a report covering recent cases on employee handbook rules that encroached on employees’ Section 7 rights under the National Labor Relations Act.  Griffin’s report (GC Memo 15-04) stated that the vast majority of handbook violations are due to employers’ failure to comply with the first prong of the Lutheran Heritage test.  The report also provides timely guidance to employers in light of a recent NLRB decision against a fast-food restaurant’s finding Section 7 violations in its employee handbook.

Protecting alleged “whistleblowers” has become a greater and greater priority of government agencies in recent years.  When agencies believe employers are taking actions that stifle the “whistleblowing” of employees, they are quick to take strong action.  For the first time, an agency that gets plenty of attention from companies has joined in this effort.