Q.  What is the standard for determining whether a worker is an independent contractor for purposes of federal wage and hour laws and union organizing conduct?

A.  Recently, both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) issued documents supporting independent contractor status, evidencing the more pro-employer stance of the

Q.  Are students who work in connection with their studies considered to be “employees” and therefore able to unionize?

A.  In a significant development for private colleges and universities, the National Labor Relations Board (NLRB) announced that it intends to propose rules that would establish a “standard for determining whether students who perform services at

Q: How does the current National Labor Relations Board view employee handbook policies?

A: Under the Trump administration, the National Labor Relations Board (“Board”) has shifted in a more employer-friendly direction, including with respect to workplace policies.  In a December 2017 decision, the NLRB reassessed the standard for evaluating when neutral workplace rules violate the National Labor Relations Act (NLRA). In that decision, the Board defined three categories of employer handbook rules and policies: (1) rules that are generally lawful; (2) rules that warrant individualized scrutiny; and (3) rules that are plainly unlawful.
Continue Reading NLRB Provides Updated Guidance on Employer Policies and Handbooks

Q.  What is the current standard for determining whether an individual is an employee or independent contractor for purposes of the NLRA?

A.   On Jan. 25, 2019, the Republican-led National Labor Relations Board affirmed the acting regional director’s decision that drivers of a shared airport ride service were independent contractors, not employees, and therefore not

Q.  What is the current rule for determining whether two employers are considered to be “joint employers” under the National Labor Relations Act?

A.  On September 14, 2018, the National Labor Relations Board (NLRB) proposed a new regulation that would make it more challenging to establish joint employer status under the National Labor Relations Act. The proposed rule dictates that two entities will be joint employers only if each exercises substantial direct and immediate control over employees.
Continue Reading NLRB Proposes New Rule on Joint Employer Standard

Q.  Can I fire an employee for making disparaging comments about the company and its supervisors on social media?

A.  According to a recent Second Circuit opinion, if the social media post was made in the context of union organizing activity, then the answer likely is no. The National Labor Relations Act (“NLRA”) prohibits employers from terminating an employee based on that employee’s union-related activity. If the employee’s protected activity rises to the level of “opprobrious” or abusive conduct, however, it could lose the protection of the NLRA.   Nonetheless, the standard for a finding that the employee engaged in “opprobrious” or abusive conduct is quite high.
Continue Reading Profanity-Laced Social Media Posts May Be Permissible in the Context of a Union Organizing Campaign

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.Continue Reading Keeping Internal Investigations Confidential: That’s Not Legal?

Our firm’s latest “Advisory” just went out this afternoon explaining the D.C. Circuit Court of Appeals‘ ruling from last Friday that President Obama’s “recess” appointments to the National Labor Relations Board were unconstitutional, and therefore the Board was without the required quorum to act in a case from last year in which it found a soda-bottling company had committed an unfair labor practice.

This case involves a fascinating legal issue of the interpretation of the U.S. Constitution and the separation of powers between the Legislative and Executive branches (at least for those who find such things fascinating).  This decision is also good news for a particular soda-bottling company that challenged the NLRB’s decision.
Continue Reading NLRB Board Appointments Ruled Invalid — What Does This Mean for Employers?

When you are conducting a workplace investigation, do you instruct employees interviewed not to discuss the investigation with other employees?  You probably do.  It protects the fairness, integrity and truth-gathering function of the investigation.  It allows you to do the best possible investigation.

Did you know, however, that giving that instruction to employees — to not discuss the investigation with co-workers — may be illegal?  The National Labor Relations Board (NLRB) recently said it is.  Read on for their explanation and what you can do about it.
Continue Reading Telling An Employee “Don’t Discuss It” Can Be Illegal

Our Troutman Sanders LLP Labor & Employment Group just sent out an Advisory on the NLRB’s Union Rights Poster Rule.  In a nutshell, the Rule — which requires employers to put up posters informing employees of their rights under the National Labor Relations Act — was supposed to go into effect on April 30, 2012.  However, a federal district court last week found the rule to be invalid.
Continue Reading One Court Rejects Union Rights Poster and Another Stops the April 30 Posting Deadline