Keahn Morris on NLRA

Employers May Not Have To Retain Racists, Sexists And Belligerently Disobedient Employees After All-The NLRB Appears Ready To...

It is lawful to discipline and even discharge an employee for making inappropriate or offensive remarks in the workplace. Indeed, current anti-harassment and anti-bullying laws may require an employer to take adverse action...more

9/12/2019 / Adverse Employment Action , Corporate Counsel , Employer Liability Issues , Employment Litigation , Employment Policies , Hiring & Firing , NLRA , NLRB , Offensive Language , Protected Concerted Activity , Racist Remarks , Unfair Labor Practices , Unions

The NLRB Nixes Union Gerrymandering And Establishes A Three Step Test For Voting Unit Determinations

In the organizing context, the scope of a potential bargaining unit is everything-it determines which employees’ votes will count towards establishing a union’s putative majority in a secret ballot election, and determines...more

9/12/2019 / Bargaining Units , Boeing , Gerrymandering , NLRA , NLRB , Union Elections , Union Organizers , Unions

The NLRB Rules That Employers May Bar Union Representatives From Their Property Even Though They Have Allowed Other Third Parties...

Setting clear and reasonable standards for taking access to an employer’s private property is high on the National Labor Relations Board’s agenda. Not only is the Board talking about issuing formal rules in this area, but the...more

9/11/2019 / Administrative Law Judge (ALJ) , Dismissals , Disparate Treatment , Employee Rights , Employer Liability Issues , Kroger , NLRA , NLRB , Private Property , Property Owners , Reversal , Right of Access , Solicitation , Unfair Labor Practices , Union Organizers , Union Representatives , Unions

An Employer’s Erroneous Announcement To Employees Declaring Them Independent Contractors Does Not, Standing Alone, Violate The...

Does an employer who genuinely believes that its workers are independent contractors and tells them that they are contractors and not employees, only to later find out that it was wrong, violate Section 8(a)(1) of the...more

9/6/2019 / Administrative Law Judge (ALJ) , Administrative Review , Delivery Drivers , Employee Definition , Employer Liability Issues , Employment Litigation , Former Employer , Hiring & Firing , Independent Contractors , Misclassification , NLRA , NLRB , Protected Concerted Activity , Reversal , Unfair Labor Practices , Wrongful Termination

The NLRB Holds That Employers May Implement Class Waivers in Response to Class Claims and Discipline Employees Who Refuse to Sign...

Employers wishing to implement class action waivers in response to class claims and discipline employees who refuse to sign them just got some very good news from the National Labor Relations Board (NLRB or Board) in Cordua...more

8/16/2019 / Adverse Employment Action , Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Collective Actions , Federal Arbitration Act , NLRA , NLRB

Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective...

In its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications...more

8/14/2019 / Construction Industry , Corporate Counsel , New Rules , NLRA , NLRB , NPRM , Rulemaking Process , Unfair Labor Practices , Union Elections , Union Representatives , Unions

The NLRB Confirms that Intermittent Strikes in Furtherance of the Same Goal are Unprotected

The National Labor Relations Act’s (NLRA or Act) Section 7 grants to all employees — regardless of whether they are unionized or not — the right to engage in protected concerted activity (PCA). Accordingly, an employer may...more

8/2/2019 / Administrative Law Judge (ALJ) , Employee Rights , Employer Liability Issues , Employment Policies , NLRA , NLRB , Protected Concerted Activity , Section 7 , Strike , Unfair Labor Practices , Unions , Wal-Mart

The NLRB Just Made It A Little Easier For Employees To Get Rid Of Their Union

Unionized workers wishing to rid themselves of continued union representation (and their employers) just got some very good news from the National Labor Relations Board (NLRB or Board) with the issuance of Johnson Controls,...more

7/17/2019 / Collective Bargaining Agreements (CBA) , Employer Liability Issues , Irrebuttable Presumptions , NLRA , NLRB , Secret Ballot , Unfair Labor Practices , Union Representatives , Unions

Which Are They? Independent Contractors Or Employees? Navigating The Conflicts Between State And Federal Law

UberX and UberBLACK Drivers Are Not Employees for Purposes of the NLRA - According to the NLRB General Counsel’s Division of Advice (GC), Uber’s UberX and UberBLACK drivers are independent contractors exempt from the...more

7/3/2019 / Antitrust Violations , Collective Bargaining , Delivery Drivers , Employer Liability Issues , Employment Litigation , Fair Labor Standards Act (FLSA) , Federal Labor Laws , Federal v State Law Application , Gig Economy , Independent Contractors , Local Ordinance , Misclassification , NLRA , NLRB , State Labor Laws , Uber , Wage and Hour

NLRB Limits Duty to Bargain Over Disciplinary Actions

A unionized employer must bargain with its employees’ union before making any unilateral changes in employees’ wages, hours, working conditions or other terms and conditions of employment. Such changes are commonly referred...more

7/1/2019 / Adverse Employment Action , Bargaining Power , Collective Bargaining , Employment Policies , NLRA , NLRB , Unions

NLRB Limits Union Access Rights to “Public Spaces” of Employers

On June 14, 2019, the National Labor Relations Board (NLRB or Board) issued an important decision clarifying whether and when an employer may lawfully exclude union organizers from its privately owned public spaces. Under...more

6/18/2019 / Disparate Treatment , Employee Rights , NLRA , Private Property , Public Access Laws , Public Property , Union Representatives , Unions

It’s OK to Be Different- NLRB Rules That Union Represented Employees Are Not Entitled to Midterm Bargaining Over Same Paid Holiday...

Does an employer automatically engage in unlawful discrimination when it grants an improved benefit to its non-union employees but withholds the improvement from its union employees who are covered by a collective bargaining...more

6/6/2019 / Administrative Law Judge (ALJ) , Collective Bargaining , Collective Bargaining Agreements (CBA) , Contract Terms , Disparate Treatment , Employer Liability Issues , Labor Relations , NLRA , NLRB , Non-Union , Paid Leave , Protected Concerted Activity , Unions , Wage and Hour

Labor Development Impacting Developers, Contractors, and Landowners

It is unlawful for unions to secondarily picket construction sites or to coercively enmesh neutral parties in the disputes that a union may have with another employer. This area of the law is governed by the National Labor...more

5/24/2019 / Construction Industry , Construction Workers , General Contractors , Land Developers , Land Owners , NLRA , NLRB , NLRB General Counsel , Right to Picket , Unfair Labor Practices , Unions

It’s Perfectly Clear Once Again— NLRB Limits “Perfectly Clear” Successor Exception

The circumstances under which an asset buyer has a duty to bargain with an incumbent union may be changing. In NLRB v. Burns Security Services, Inc., 406 U.S. 272 (1972), the Supreme Court held that an employer who purchases...more

4/10/2019 / Collective Bargaining , Collective Bargaining Agreements (CBA) , Duty to Bargain , Employer Liability Issues , Employment Terms , Exceptions , Hiring & Firing , NLRA , NLRB , Successors , Unions

NLRB’s Division of Advice Gives “Advice” As to the Application of Boeing — When a Work Rule/Employment Agreement is Facially Valid...

In The Boeing Company, 365 NLRB No. 154 (2017), the National Labor Relations Board (NLRB) reassessed the standard it would apply when determining the facial validity of otherwise neutral work rules based upon a balancing...more

3/25/2019 / Boeing , Employee Handbooks , Employee Rights , Employer Liability Issues , Employment Policies , NLRA , NLRB , Protected Concerted Activity , Section 7 , Unions

NLRB Issues Important Decision Regarding What Constitutes “Protected Concerted Activity” in Union and Union-Free Environments...

In yet another case that impacts both union and non-union employers, the Republican-majority National Labor Relations Board (Board) overruled Obama-era precedent and substantially narrowed what is considered “protected...more

1/18/2019 / Employer Liability Issues , Employment Policies , NLRA , NLRB , Protected Concerted Activity , Section 7 , Social Media Policy , Terms and Conditions , Unions , Wage and Hour

California Superior Court Judge Orders Department of Public Health to Make Names and Personal Home Addresses of Approximately...

A California Superior Court judge recently issued an order granting the Service Employees International Union’s (“SEIU”) petition for writ of mandate under the California Public Records Act (“CPRA”) and ordered the California...more

5/18/2018 / California Privacy Rights Act (CPRA) , CDPH , Collective Bargaining , Healthcare Facilities , Healthcare Workers , Hospitals , Invasion of Privacy , Labor Relations , Licensees , Long Term Care Facilities , Material Dissemination , NLRA , NLRB , Personally Identifiable Information , Petition for Writ of Mandate , SEIU , Skilled Nursing Facility , Union Organizers , Unions

Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of...more

4/27/2018 / Appeals , Boeing , Browning-Ferris Industries of California Inc. , Collective Bargaining Agreements (CBA) , Corporate Counsel , Employee Handbooks , Employee Rights , Hiring & Firing , Joint Employers , NLRA , NLRB , Off-Duty Employees , Presidential Appointments , Protected Concerted Activity , Title VII , Trump Administration , Unions

NLRB Asks D.C. Circuit to Revive Review of Joint Employer Standard Under BFI; Hy-Brand Decision Vacated Following NLRB Ethics...

On March 1, 2018, the Deputy Associate General Counsel for the National Labor Relations Board (“NLRB”) asked the D.C. Circuit to revive its review of the Obama-era Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”)...more

Considering Offering Severance Pay in Exchange for Certain Post-Employment Obligations? Think Again.

An employer violated employee’s labor rights by offering her a separation agreement that contained unlawful terms ruled a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) in Baylor Univ. Med. Ctr.,...more

2/21/2018 / Administrative Law Judge (ALJ) , Boeing , Confidentiality Agreements , Employee Rights , Employees , Employer Liability Issues , Federal Labor Laws , Hiring & Firing , NLRA , NLRB , Non-Disparagement Provisions , Participation Agreements , Protected Concerted Activity , Section 7 , Severance Agreements , Severance Pay , Termination , Unions

Striking A New Balance – The NLRB Abandons the Lutheran Heritage Test and Devises a New Standard for Assessing the Facial Validity...

In 2004, the National Labor Relations Board (NLRB) issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”), and held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the...more

12/18/2017 / Boeing , Employee Handbooks , Employer Liability Issues , Employment Policies , NLRA , NLRB , Protected Concerted Activity , Section 7 , Unions

Keahn Morris

Sheppard Mullin Richter & Hampton LLP

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