Facebooking Misappropriated Employer Form Is Not Protected Activity

By Chance Hill On June 11, 2018, the National Labor Relations Board (Board) Division of Advice applied the Board’s new Boeing standard for assessing employer policies.  The Division advised that an employer did not violate the NLRA when it discharged a pro-union employee who Facebooked a form that was “improperly taken” from a team leader’s […]

Trump Board Trashes “Biggest Idiot” Test

By Bernie Siebert The Trump Board quickly jumped on the Obama Board’s seeming obsession with otherwise innocuous employee policies and handbook provisions. The Boeing Company. We have repeatedly blogged about the Obama Board’s “biggest idiot” theory as applied to handbook provisions.  Rather than reviewing handbook policies to see whether a reasonable person might interpret them to unlawfully prohibit […]

Racist Picket Conduct Protected

By Bill Wright The NLRB holds – famously now – that sexist and racist conduct on a picket line is protected from adverse action unless the conduct is also violent and coercive. Despite a shot across its bow in Consolidated Communications, Inc. v. NLRB, (D.C. Cir. 2016), the Board continues to force employers to ignore […]

One More Reason Misclassification Kills

By John Alan Doran You’ve heard plenty about the evils of misclassifying employees as independent contractors. And, according to the DOL, among others, you’re still doing it wrong. The NLRB doubled down on this recently when the NLRB General Counsel released an advice memorandum stating that an employer’s misclassification of employees as independent contractors also […]

NLRB Classifies TAs as Employees

By Bill Wright The NLRB chose not to interfere with collegiate football.  Northwestern University, Case 13-RC-121359 (August 17, 2015).  Collegiate teaching assistants, though, are another thing.  In Columbia University, Case 02-RC-143012 (August 23, 2016), the Board reversed another established precedent to assert that teaching assistants (“TAs”) are “statutory employees” and may choose to have union […]

Latest NLRB Power-Grab Benchslapped

By John Alan Doran In another setback for the NLRB, a federal appeals court ruled recently that the NLRB lacks the authority to impose adverse attorneys’ fees awards against employers in Board proceedings.  HTH Corporation v. NLRB  The case involved a serious and serial violator of the NLRA, according to the Board and multiple courts. In […]

The War on Employment Arbitration

By Andy Volin The Seventh Circuit just created a split in the Federal Courts of Appeals by ruling an employment arbitration provision that did not permit arbitration of collective claims was not enforceable because it violated the National Labor Relations Act.  Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016). This is the first […]

Handbook Revisions Due

By Bill Wright The U.S. Court of Appeals for the District of Columbia sided with the NLRB on 3 common employer policies. These rules violate the NLRA on their face: The “investigative confidentiality rule.” The company had a rule that “prohibited employees from revealing information about matters under investigation.” This was overly broad. Sure, EEO […]

NLRB Sticks To D.R. Horton

By Lori Phillips Recently in Chesapeake Energy Corp., 362 NLRB No. 80 (Apr. 30, 2015), the NLRB held fast to its ruling in D.R. Horton, Inc., 357 NLRB No. 184 (2012). The employer required its employees to sign an arbitration agreement as a condition of employment. The agreement required “binding arbitration to resolve all disputes” […]

NLRB “Modernizes” Procedures

By Patrick Scully and Beth Ann Lennon The NLRB has adopted comprehensive changes to the procedures for representation elections under the NLRA. Some changes, such as the ability to file documents electronically, clearly bring Board election procedures into this century. Unfortunately, a majority of the changes only speed up the election process itself. The adopted […]