Today, the United States Supreme Court ruled in Epic Systems Corp. v. Lewis, No. 16-285 that employers could lawfully require employees to waive their rights to pursue employment-related class actions through arbitration agreements providing for individualized proceedings. In a 5-4 decision, the Court ruled that such waivers do not violate the National Labor Relations Act.

Continue Reading Of Elephants and Mouseholes: Supreme Court Holds Employers Can Lawfully Require Class Action Waivers in Arbitration Agreements

On May 3, 2018, at our 15th Annual Labor Relations Conference, both the current and immediate-past Chairmen of the National Labor Relations Board  will provide in-house counsel and human resources and labor relations professionals a special opportunity to see “behind the curtain.” Hear direct from these Presidential-appointees about where the NLRB has been and where it is going. Co-hosted with the Arizona Society for Human Resources Management at the Phoenician in Scottsdale, this full-day program features speakers from Steptoe’s Labor & Employment group, as well as:

Click here for more information, the agenda, and to register. We hope to see you there.

In Part 1 of the series reexamining harassment policies and procedures, we looked at common harassment investigation missteps and how to correct them. In Part 2, we examine confidentiality policies.

Employers often defend Title VII harassment claims by showing that they exercised reasonable care to prevent and correct harassing behavior. A key aspect of reasonable care requires an employer to have an anti-harassment policy that, according to the EEOC, “should contain, at a minimum” six elements including an “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.”

At the same time, the NLRA prohibits employers from maintaining blanket confidentiality rules that prohibit employees from discussing workplace investigations. In Banner Estrella Medical Center, 358 NLRB 809 (2012), the NLRB found that an HR consultant violated the NLRA by routinely asking employees not discuss ongoing investigations with their coworkers. To lawfully require confidentiality of employees, an employer must show a legitimate business justification specific to the investigation at issue, such as the need to protect witnesses or prevent tampering with evidence. That remains the law today, despite the NLRB’s recent shift on employer policies.

So how’s an employer to reconcile those seemingly conflicting laws? Continue Reading Confidentiality Policies that Survive EEOC and NLRB Scrutiny: Reexamining Harassment Investigation Protocol Part 2

Yesterday, the National Labor Relations Board vacated Hy-Brand Industrial Contractors amidst controversy surrounding Member Bill Emanuel’s participation in the decision. That decision leaves intact the Obama-board’s expanded joint employer standard from Browning-Ferris Industries of California, at least until the Board finds another vehicle to overturn the case.

The NLRB’s Office of Inspector General issued a report finding that Member Emanuel should have recused himself from the Hy-Brand decision in light of the close connection between his prior law firm, which represented one of the parties in Browning-Ferris, and the issues in Hy-Brand.  The Board noted that report when it issued its Order vacating the decision.

In its fifth major decision in five days, the Board overruled a 2016 decision that limited what changes to terms and conditions of employment that an employer can make without bargaining.  In so doing, the Board returned to a broader view of what it means to maintain the “status quo.”  In Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), the Board held that employers do not need to bargain when “the employer takes actions that are not materially different from what it has done in the past.”  In Raytheon, that meant the employer lawfully modified employee medical benefit plans after the CBA expired because the employer had made similar modifications annually for 11 years.

Continue Reading NLRB: No Duty to Bargain Over Routine Changes to Health Plans

Late Friday evening, the NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), the decision that permitted unions to organize “micro-units” of employees.  In PCC Structurals, Inc., 365 NLRB No. 160, the Board returned to “the traditional community of interest standard” for evaluating the appropriateness of a petitioned-for bargaining unit.

Continue Reading NLRB Overrules Specialty Healthcare

Today, the NLRB issued two landmark cases reversing precedent on the Board’s test for work rules and joint employment. In The Boeing Company, 365 NLRB No. 154, the Board reversed a 2004 decision that prior Boards used to find unlawful “a large number of common-sense work rules and requirements that most people would reasonably expect every employer to maintain.” In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156, the Board overruled the Browning-Ferris joint-employment test and returned to requiring direct control over essential terms and conditions of employment before it will find joint employment status.

Continue Reading NLRB Changes Course on Work Rules and Joint Employment

On Monday, December 11, 2017, the Board issued a decision holding that Administrative Law Judges can approve an employer’s offer to settle unfair labor practice charges so long as the settlement offer is “reasonable,” even if the general counsel and charging party object to the settlement.  The case reverses Obama-era precedent that held that an ALJ can approve a settlement only if the settlement provides “complete relief” for every alleged unfair labor practice. That standard made it impractical for employers to settle unfair labor practice charges because employers received no compromise in exchange for foregoing full-blown litigation.

Continue Reading NLRB Returns to “Reasonable” Settlements

The newly-appointed NLRB General Counsel Peter Robb issued his list of priorities in Advice Memo 18-02 released December 4, 2017.  The Memo sets forth the “Mandatory Submissions to Advice” – the kinds of cases Regional Directors must submit to the Division of Advice to obtain guidance before issuing a complaint.  The Advice Memo signals the GC’s intent to assist the Board in undoing much of the Obama-era Board’s sweeping changes to federal labor law.  As predicted, many of the priorities focus on the Board’s handbook-related changes, granting employee access to employer email systems, and confidentiality rules in investigations.

Continue Reading New NLRB General Counsel Sets Out Priorities