Joint-Employer Rule Faces Early Legal Hurdle

Mathew Moldawer
Mathew Moldawer
11/16/2023
In September 2022, the National Labor Relations Board (NLRB) proposed a new rule to determine joint-employer status.  The new rule, adopted in October 2023, will take effect on December 26, 2023, and be applied prospectively.[1] One of the more controversial aspects of the new rule is that it removes the requirement that a putative employer actually exercise control over those essential terms and conditions of employment.[2]  In fact, an employer...
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NLRB Issues New Joint Employer Rule

The National Labor Relations Board (NLRB) released today its Final Rule regarding the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA).  The NLRB press release states: Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and...
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NLRB Releases Filing Statistics for FY 2023

Vincent Jackson
Vincent Jackson
10/19/2023
The National Labor Relations Board released case processing data for FY 2023.  The data shows that between October 1, 2022 and September 20, 2023, 22,448 cases were filed--a 10% increase over the previous fiscal year.  2023 also saw the highest number of cases filed since 2016. The increase in filings was spread across both unfair labor practice (ULP) charges and union representation-related activity.  Both categories of cases have seen...
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Employer’s Failure to Bargain with Union Proves Costly

Mathew Moldawer
Mathew Moldawer
10/05/2023
The National Labor Relations Board (NLRB) has ordered a hospital in Puerto Rico to rehire and provide back pay to eleven maintenance employees who it deemed were illegally terminated.  The September 30, 2023 decision from the three-member panel found that the employer, Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras violated Sections 8(a)(5) and (1) by its decision to subcontract the services performed by the Environmental Control...
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And So The Pendulum Swings: NLRB Revives Joy Silk From The Ashes

Mathew Moldawer
Mathew Moldawer
08/29/2023
The NLRB’s democratic majority struck a big win for unions by reviving the precedent set in the 1949 NLRB decision, In re Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949).   Using Cemex Construction Materials Pacific, LLC as their torpedo, the NLRB has inflicted a blow to employers facing unionization efforts. The employees at issue were approximately 366 ready-mix cement truck drivers and driver trainers.  The drivers and trainers showed support...
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‘Captive Audience’ Memo from NLRB General Counsel Survives First Legal Battle

Mathew Moldawer
Mathew Moldawer
08/17/2023
Since the decision in Babcock v. Wilcox Co., 77 NLRB 577 (1948), the NLRB has permitted captive audience meetings. Under the captive audience doctrine and Section 8(c) of the NLRA, employers may hold mandatory employee meetings and speak to their employees about unionization so long as the employer does not threaten, punish, or promise benefits to the employees. Captive audience meetings are one of the few remaining arrows in management’s quiver...
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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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New Jersey Company Must Provide Back Pay To Laid-off Employees After Failure To Engage In Effects Bargaining

Mathew Moldawer
Mathew Moldawer
06/28/2023
In general, when an employer subject to a collective bargaining agreement (CBA) closes a facility or shuts down a business, the employer should inform the union of its plans – failure to do so could cost the company.   The concept is referred to as “affects bargaining,” and is the subject of a recent National Labor Relations Board (NLRB) decision, Tec-Cast, Inc. (NLRB June 21, 2023).  Tec-Cast is a New Jersey corporation that produces wax...
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NLRB General Counsel Says Non-Competes Usually Violate The NLRA

Kollman & Saucier
Kollman & Saucier
05/31/2023
First confidentiality and non-disparagement provisions in severance agreements were declared unlawful, and now Jennifer Abruzzo, General Counsel for the National Labor Relations Board, has taken the same view of most non-compete agreements. On May 30, 2023, the General Counsel issued an advisory memo detailing her view that non-compete provisions in employment contracts “interfere with employees’ exercise of rights under Section 7 of the...
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NLRB Reverses Position and Invalidates Non-Disparagement and Confidentiality Clauses Within Severance Agreements

Kollman & Saucier
Kollman & Saucier
03/02/2023
All employers (yes, including non-unionized employers) need to consider  removing from any severance agreements entered into with employees leaving the organization, generalized language that prohibits the employee from disparaging the organization (or its affiliates, officers, directors, employees, and the like) as well as requiring the employee to keep the severance agreement, events leading up to it, and any negotiations as confidential.  In...
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