NLRB Restores Independent Contractor Analysis

Kollman & Saucier
Kollman & Saucier
01/29/2019
This past Friday, the National Labor Relations Board, in 3-1 decision, revitalized the importance of “entrepreneurial opportunity” in the analysis of whether a worker is an employee or independent contractor for purposes of the National Labor Relations Act (NLRA).  SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019).  The distinction between employee and independent contractor status is important, because the former is protected by the NLRA...
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Now Where Did I Put Those Confidential Documents?

Darrell VanDeusen
Darrell VanDeusen
01/13/2019
Note:  This is a story about an employment issue at the NLRB.  Apropos of nothing perhaps, the NLRB has been open throughout the Government Shutdown, while the EEOC has been closed. We all misplace stuff, right?  I found my car keys right where I left them.  And my glasses were right on my forehead, which my wife pointed out to me.   But, in 34 years of law practice, I have never misplaced (read “lost”) confidential documents. I do recall...
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NLRB's Office of General Counsel Issues More Advice Memoranda

Kollman & Saucier
Kollman & Saucier
10/11/2018
On September 14, 2018, the NLRB's Office of General Counsel (OGC) issued a handful of advice memos, several of which are summarized here: The misclassification of employees as independent contractors violates the NLRA because misclassification has and will operate as a restraint on, and interference with, the individuals' exercise of their Section 7 rights.   Telemundo Television Studios, LLC (June 13, 2017). Just like employees, independent...
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Union Threatens Strike over Marriott’s Green Initiative

Darrell VanDeusen
Darrell VanDeusen
09/19/2018
News reports on virtually everything over the past week (ok, more like nearly two years) has me shaking my head at the “crazy town” world we find ourselves living in.  I have restrained myself from writing blogs about the various things I regularly find absurd, largely because it would consume more time than I have.  But reports coming out over the past few days about the strike vote taken by UNITE HERE housekeeping employees at Marriott put me...
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NLRB Proposes Joint-Employer Standard Rule

Kollman & Saucier
Kollman & Saucier
09/14/2018
Today, the National Labor Relations Board (Board) published a Notice of Proposed Rulemaking (NPR) to establish the standard for finding that one entity is a joint employer with another entity.  Under the proposed rule, an employer may be a joint-employer of another employer’s employees “only if [1] it possesses and exercises direct and immediate control over the essential terms and conditions of employment and [2] has done so in a manner...
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NLRB Seeks Input on Non-Work Related Use of Company Email Systems

Kollman & Saucier
Kollman & Saucier
08/08/2018
As some readers may be aware, last year, the National Labor Relations Board (the Board) reversed several Obama-era precedent setting cases bearing standards generally considered favorable to employees.  This included The Boeing Company, 365 NLRB No. 154 (2017) (overruling the Lutheran Heritage standard); PCC Structurals, Inc., 365 NLRB No. 160 (2017) (overruling the Specialty Healthcare standard); and Hy-Brand, 365 NLRB No. 156 (2017)...
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NLRB Releases New Guidance on Handbook Rule Posting

Kollman & Saucier
Kollman & Saucier
07/19/2018
The Office of the General Counsel to the NLRB recently released new guidance on the types of employer handbook rules that are permissible in the wake of the Board’s December 2017 ruling in The Boeing Co, 365 NLRB No. 154 (12/17/17).  In that case, the Board set a new standard for evaluating the lawfulness of workplace rules under Section 7 of the NLRA. The new standard weighs the importance of the employee’s exercise of their Section 7 rights...
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Want Fries with that NLRA Violation?

Darrell VanDeusen
Darrell VanDeusen
07/11/2018
The Court of Appeals for the Fifth Circuit recently enforced a decision of the National Labor Relations Board (NLRB) that In-N-Out Burger in Austin, Texas violated labor laws with its “no pins or stickers” rule, when it stopped employees wearing buttons supporting the “Fight for $15” campaign – a movement advocating for a $15 per hour minimum wage.  In-N-Out Burger, Inc. v. NLRB, No. 17-60241, 2018 U.S. App. LEXIS 18472 (5th Cir. July 6,...
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NLRB: Solo Strike May Be Protected Activity

Kollman & Saucier
Kollman & Saucier
07/06/2018
The National Labor Relations Board’s (NLRB) Division of Advice recently published an advice memorandum clarifying that the National Labor Relations Act (NLRA) can protect employees who engage in a solo strike. The memorandum centered on a former employee who was terminated from a Papa John’s restaurant in South Carolina after taking part in an August 2016 “Fight for $15” rally organized by several groups, including the Southern Workers...
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No Federal Preemption In MLB Player’s Negligence Lawsuit

Kollman & Saucier
Kollman & Saucier
07/06/2018
In June 2017, while making his major league debut for the New York Yankees, right fielder Dustin Fowler crashed into a wall while chasing a foul ball at Chicago’s Guaranteed Rate Field.  Fowler seriously injured his knee in the collision, sustaining a rupture of the patellar tendon.  Fowler underwent surgery and missed the remainder of the 2017 season.  Fowler has sued the Chicago White Sox and the Illinois Sports Facilities Authority,...
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