NLRB Revises Workplace Rules Standards

As has been anticipated for some time, the National Labor Relations Board (NLRB), in Stericycle, Inc. (Aug. 2, 2023), adopted a new standard for determining whether workplace rules are lawful under the National Labor Relations Act.  The new standard is similar to the analysis used prior to the Board’s 2017 decision in Boeing Co. Under the Stericycle framework, the lawfulness of workplace rules under the NLRA turns on whether workers would view...
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Seventh Circuit Blasts ADT For NLRA Violations

Mathew Moldawer
Mathew Moldawer
06/30/2023
From the opening, it was apparent that the Seventh Circuit Court of Appeals was not pleased with ADT.  ADT, well known for their blue signs to discourage intruders, was found to have violated the National Labor Relations Act (NLRA) by the National Labor Relations Board (NLRB).  As stated by the Court, the case “presents a disappointing and transparent attempt by an employer to avoid its obligations under the National Labor Relations Act.”...
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NLRB Clarifies (Again) NLRA Independent Contractor Test

Garrett Wozniak
Garrett Wozniak
06/16/2023
The National Labor Relations Board (NLRB) has revisited the standard under the National Labor Relations Act for determining whether a worker is an independent contractor.  The Atlanta Opera, Case 10-RC-276292 (NLRB June 13, 2023). First, a little background.  In its 2019 SuperShuttle DFW decision, the Board made it easier for companies to establish that their workers are independent contractors (rather than employees) by clarifying and emphasizing...
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National Labor Relations Board Changes its Mind (Again) – Reverts to Previous Rule on Disciplining Misconduct Occurring in Connection with Protected Activity

Kollman & Saucier
Kollman & Saucier
05/04/2023
It is no secret that the National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel Abruzzo is pushing a pro-union/employee agenda.  She stated as much in 2021 when she released her 10-page memo to NLRB staff outlining that under her leadership, the NLRB would focus on reviewing the “numerous adjustments to the law, including a wide array of doctrinal shifts” that occurred under the NLRB’s prior leadership.  Don’t...
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New NLRB Joint Employer Rule Coming This Summer

Kollman & Saucier
Kollman & Saucier
04/19/2023
In September 2022, the National Labor Relations Board (NLRB) issued its proposed rule on the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA).  This rule, which is a return to the Obama-era standard, states entities are joint employers if they "share or codetermine those matters governing employees' essential terms and conditions of employment."  Significantly, under this rule, the authority alone to...
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ALJ Finds Employer Violated Federal Law By Reinstating Employee Subject To A Last Chance Agreement Containing A Broad Non-Disparagement Provision

Clifford Geiger
Clifford Geiger
04/13/2023
The recent case Challenge Mfg. Holdings, Inc., Case 07-CA-286573 (2023), demonstrates how some judges may apply the National Labor Relations Board’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023), which held that an overly broad non-disparagement provision in a severance agreement was unlawful under the National Labor Relations Act (the “Act”). The provision at issue in McLaren Macomb prohibited employees who accepted severance from...
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What to Expect When you are Expecting: Labor Pains

Darrell VanDeusen
Darrell VanDeusen
02/10/2023
The turn of the phrase “labor pains” when talking about union organizing is now an old, trite (and stupid, while meant to be humorous) expression.  But it’s one I heard used regularly when I was a baby lawyer in the mid-1980s.  K&S posted a number of blogs in 2022 regarding the new wave of union organizing.  Moreover,  a quick inquiry to your favorite search engine will show you that there is a resurgence in organizing.  It has not...
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You Quit? That’s An Unfair Labor Practice Says NLRB

Darrell VanDeusen
Darrell VanDeusen
12/29/2022
The National Labor Relations Board (NLRB) came out with a bunch of year-end decisions, some of which were blogged about by my friend and partner Eric Paltell on this site a couple of weeks ago.   Put gently, none of these decisions could be considered “employer-friendly.”  Here’s another one. On its last day before the winter break, the NLRB held, in a 2-1 decision, that an employer committed an unfair labor practice (ULP) by refusing to...
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NLRB Refuses to Set Aside Election Based on Failure to Provide Home Phone Numbers

Kollman & Saucier
Kollman & Saucier
12/21/2022
In a decision issued on the last day of Member Ring's term, the NLRB ruled that an employer's failure to provide the union with  home phone numbers for five employees did not warrant setting aside the employer's election victory.  In MVM, Inc., 372 NLRB No. 32, the Board held that omitting the numbers for only five of the 92 employees while providing cell phone numbers for all employees "substantially complied" with the voting list requirements...
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NLRB Expands Remedies Available for Unfair Labor Practice Charges

Kollman & Saucier
Kollman & Saucier
12/19/2022
On December 13, 2022, the National Labor Relations Board issued a decision  that will substantially expand the relief available to an employee who prevails in an unfair labor practice charge proceeding.  The Board's decision in Thrive, Inc., 372 NLRB No. 22, holds that the standard "make-whole" remedy for an employee harmed by an employer's unfair labor practice includes compensation for "all direct or foreseeable pecuniary harm" resulting from...
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