Hunton Employment & Labor Perspectives

On July 27, 2020 the NLRB issued a supplemental decision involving a labor law successor employer, which unilaterally implemented terms and conditions of employment prior to commencing operations. The question presented was whether and to what extent the successor could take further unilateral action, free of the duty to bargain with the union. As discussed below, the Board determined that the applicable standard in such cases is whether the successor’s unilateral action was “reasonably encompassed” by the unilaterally imposed terms.

Over the past 40 years, the National Labor Relations Board (the Board) has grappled with the appropriate balance between an employer’s right to discipline an employee for abusive behavior and an employee’s right to engage in Section 7 activity. Much to the dismay of employers, this balancing act has historically tipped heavily in favor of protecting an employee’s right to engage in Section 7 activity at the expense of an employer’s right to discipline its employees for conduct such as using racial slurs while picketing, engaging in sexist behavior, or yelling obscenities at a supervisor while discussing wages. As a result, the Board has issued countless decisions finding an employer violated the National Labor Relations Act (the Act) for disciplining employees who engage in objectively offensive, racist, and abusive conduct while also engaged in Section 7 activity.

The U.S. District Court for the District of Columbia has issued its third, and presumably final, decision in the lawsuit challenging the National Labor Relations Board’s new election rules. In the latest order, the Court granted summary judgement in favor of the NLRB on the remaining counts of the complaint.

On June 12, 2020, the D.C. Circuit vacated a component of an NLRB decision that expanded employee rights under NLRB v. J. Weingarten. The D.C. Circuit rejected the NLRB’s determination that a mere statement of fact constituted an employee’s requests for union representation.

In a dispute between Circus Circus Casinos, Inc. (the “Employer”) and an employee, the Employer, pursuant to OSHA regulations and internal policies, required the employee to submit to a medical examination prior to participating in a fitting process for necessary equipment, to ensure the equipment would not jeopardize the employee’s safety. The employee refused to take the medical examination and returned to work. The Employer suspended the employee, pending an investigation into the employee’s refusal to take the mandatory medical examination. At the investigatory interview, the employee stated, “I called the union three times [and] nobody showed up, I’m here without representation.” The Employer proceeded with the interview, which culminated in the employee’s termination.

As indicated in our previous blog on this topic, on May 30, 2020, the U.S. District Court for the District of Columbia issued a two page order invalidating five elements of the NLRB’s 2019 election regulation, based on Count One of the plaintiff’s complaint.  On June 7, the court issued its promised memorandum opinion further explaining that order.

The opinion makes three key points.

In mid-May the NLRB established a clear rule regarding stray marks on ballots in union representation elections, eradicating years of convoluted and inconsistent precedent. The decision, which applied retroactively, resulted in a union’s failure to amass a majority of the votes and, consequently, a reversal of the Regional Director’s Decision and Certification of Representation.

In a dispute between Providence Portland Medical Center (the “Employer”) and Service Employees International Union Local 49 (the “Union”), the representation election was decided by the narrowest margin, ultimately resulting in 383 votes for representation, and 382 votes against representation. Included in the mix was a single ballot with a clear “X” in the “Yes” box and a dark diagonal line with a smudge mark in the “No” box. The ALJ and Regional Director applied Board precedent and both concluded that the smudge mark on the diagonal line in the “No” box was an “obvious attempt at erasure,” resulting in the ballot being counted in favor of representation.

One day before they were to go into effect, the U.S. District Court in Washington, D.C. blocked portions of the NLRB’s recently promulgated election rule, but left the agency free to implement the remainder.  American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, Civ. No. 20-cv-0675 (KBJ) (May 30, 2020).

Specifically, the Court granted the AFL-CIO’s motion for summary judgment “with respect to Count One of the Complaint”, but “will not vacate the remainder of the rule,” which was “remanded to the NLRB for reconsideration in light of this Court’s ruling.”

In another decision recognizing employers’ rights to issue reasonable prohibitions even if they have some slight impact of employees’ right to engage in concerted activity under the National Labor Relations Act, a beverage manufacturer’s rules banning cell phones in food production and warehouse working areas was recently upheld by the National Labor Relations Board.  Cott Beverages Inc., 369 NLRB No. 82 (2020).

Throughout the COVID-19 pandemic, the EEOC has periodically released updates to its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here and here. These questions and answers have provided employers with much needed guidance on the EEOC’s position on how employers can ensure the safety of their employees while at the same time not running afoul of the ADA.

Since 2014, OFCCP-covered employers have been required to invite job applicants, pre-offer, to disclose their disability status via a form prescribed by the OFCCP.  The information thus obtained helps employers analyze (1) the efficacy of their diversity recruiting efforts and (2) hiring rates of persons with disabilities.

This week, the Agency unveiled a modified format for that invitation. OFCCP hopes the revised form will increase the response rate for applicants and employees, who are often reluctant to disclose disabilities.  The form incorporates some changes requested by employers, and reduces the invitation to a single page.

Today the EEOC published a Notice in the Federal Register, announcing a delay in its collection of EEO-1 Component 1 data -- until March of 2021 -- due to the coronavirus pandemic.  (FR Doc. 2020-09876).  Component 1 data is what most employers associate with the EEO-1 Report: employment data summarized by job category, race/ethnicity, and gender.  There will now be no EEO-1 Reports submitted in 2020.

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) released an OSHA Alert for restaurants and beverage service businesses providing curbside and takeout service during the pandemic.  This Alert is one in a series of industry-specific alerts that OSHA has published, and will continue to publish, to assist and educate businesses that will re-open (or that continued to operate), and which recommends certain measures to protect employees and patrons during the COVID-19 pandemic.

The Centers for Disease Control and Occupational Safety and Health Administration collaborated to release new guidance for employers in the meat processing industry on April 26.

OSHA and the CDC noted several unique facets of meat processing work that exposed workers to increased likelihood of COVID-19 transmission at work, including close contact, the duration of the close contact, shared tools and surfaces and the frequency of ride-sharing and community-based interactions among employees.  As a result, the organizations released additional guidance to help employers keep employees safe, even as they continue to work to keep the food supply chain running.

In a recent decision of first impression, the NLRB held that its contract coverage doctrine does not apply to changes to the terms and conditions of employment after the expiration of the parties’ collective bargaining agreement, unless the contract contained explicit language that the relevant provision would survive contract expiration.  Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 369 NLRB No. 61 (2020).

The contract coverage doctrine was adopted by the NLRB in MV Transportation, Inc., 368 NLRB No. 66 (2019). There, the Board held that it would “examine the plain language of the collective bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally.”  Id.  The contract coverage doctrine dispenses with the requirement that an employer demonstrate that the union clearly and unmistakably waived its right to bargain over changes made based on contractual language.

On April 23, 2020, the EEOC updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here, to address questions that many employers are struggling with related to employee COVID-19 testing.  The EEOC’s new guidance confirms that employers are authorized to administer COVID-19 tests before allowing employees to enter the workplace, and that doing so does not violate the Americans with Disabilities Act (ADA).

EEOC guidance on COVID-19 continues to evolve as the medical community learns more about the virus.  On April 9, 2020, the EEOC expanded the list of symptoms about which employers may ask when screening employees entering the workplace, without running afoul of the Americans with Disabilities Act (ADA).  Previously, employers were permitted to ask individuals if they were experiencing fever, chills, cough, sore throat, or shortness of breath. In the agency’s most recent update to its “Technical Assistance Questions and Answers about COVID-19,” it acknowledged that the medical profession now recognizes that the virus may present with the additional symptoms of a sudden loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea or vomiting.  Inquiries about these symptoms are now permitted, as well.

Almost overnight, COVID-19 has radically altered the American workplace.  Employers and employees alike have been forced to adapt to unique issues related to employee health, compensation, leave, and in unfortunate circumstances, furlough or lay-off.

Such change may be accompanied by grievances, concerns, and fears.  And in some instances, employees will desire to communicate those anxieties to the greater public at large.  Naturally, employers will want to have some degree of control over this messaging, while preserving the rights of employees to express themselves individually or collectively.  These principles are sometimes difficult to reconcile.  But a recent NLRB decision, Karen Jo Young v. Maine Coast Regional Health Facilities, issued on March 30, illuminates some fundamental principles that can help employers manage this balance during these difficult circumstances.

Factual Summary

An employer’s duty to bargain may change during emergency situations, and the General Counsel for the National Labor Relations Board released a series of case summaries Friday to help employers navigate the exceptions.

General Counsel Peter Robb summarized nine Board cases addressing both general public emergencies and emergencies particular to individual employers.  Robb did not make any declarations about how the COVID-19 outbreak and associated response might affect bargaining obligations, but the summarized cases provide good examples of bargaining exceptions that may or may not apply.

The US Occupational Safety and Health Administration (“OSHA”) recently published Guidance for Preparing Workplaces for COVID-19 (“Guidance”), outlining steps employers can take to help protect their workforce. The Guidance focuses on the need for employers to implement engineering, administrative, work practice controls and personal protective equipment (“PPE”), as well as considerations for doing so. While there is no specific OSHA standard covering infectious disease or COVID-19 in particular, some OSHA requirements may apply to preventing occupational exposure to the virus including OSHA’s Bloodborne Pathogens standard (29 C.F.R. § 1910.20) Personal Protective Equipment (29 CFR 1910 Subpart I) Hazard Communication (29 C.F.R. § 1910.1200) and Recording and Reporting Occupational Injuries and Illnesses (29 C.F.R. § 1904). Also, the General Duty Clause of OSHA which requires employers to provide a “place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Employers with collective bargaining agreements and union relationships know they generally cannot make unilateral changes to terms and conditions of employment.  But in an unprecedented emergency like the coronavirus (COVID-19) outbreak we are all facing, union bargaining obligations may be relaxed, either based on the terms of a collective bargaining agreement, or under National Labor Relations Board law.  As employers are forced to make ever more difficult operational decisions in the face of this emerging threat, here are some issues unionized businesses should consider when contemplating major workplace changes.

Consider Contract Terms First

 It goes without saying that employers with collective bargaining agreements should first examine the language of their contracts to determine whether they provide for any increased flexibility in decision-making during emergencies, such as a public health emergency.  If the terms of a company’s CBA specifically allow for increased operational flexibility during emergency situations, then the CBA should govern, and the employer should proceed accordingly.

On February 26, 2020, the National Labor Relations Board (NLRB) finalized its rule governing joint employer status under the National Labor Relations Act.

The final rule generally restores the “direct and immediate control” standard that the NLRB applied for decades prior to the 2015 Browning-Ferris decision, but provides additional guidance.

On February 5th the NLRB determined that an employer can, pursuant to a phone use policy, prohibit the possession and use of cell phones in the cabs of its commercial vehicles, and that a prohibition does not interfere with the Section 7 rights of its employees.

In Country Wide Financial Corporation, 369 NLRB No. 12 (2020) (Countrywide), the National Labor Relations Board (“Board”) ruled that an mandatory arbitration agreement violated the National Labor Relations Act (the “Act”) because it restricted an employees’ ability to file and pursue unfair labor practice charges before the Board.

The last few weeks of a National Labor Relations Board Member’s term can be a busy time.  This is especially true when a Member’s imminent departure will leave the Board without any Members from the minority political party.  The Board historically has avoided major shifts in precedent without the participation of both parties.

Last month was no different.  As the clock wound down on Democrat Lauren McFerran’s term this December, the Board issued a flurry of significant rules and opinions that pare back many of the most anti-employer precedents set during the Obama-era.  Issuing these rulings prior to Member McFerran’s departure allowed the Board to include her dissenting views in most cases.  But ultimately, the Republican-majority prevailed–resulting in good news for employers going forward on multiple fronts.  We summarize the Board’s “December to Remember” below.

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures.

The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015. Those changes effectively sped up the election process and cut down on employers’ ability to litigate many important legal issues prior to voting, putting employers at a disadvantage.

In an October Advice Memorandum, the Office of the General Counsel for the NLRB (General Counsel) concluded that a union’s continued actions of unlawful insistence are not a refusal to bargain if bargaining negotiations have ceased.

The National Labor Relations Board (the “Board”) under the current administration continues to issue employer friendly rulings in the context of evaluating whether employer work rules violate the National Labor Relations Act (the “Act”).   In LA Specialty Produce Company, 368 NLRB No. 93 (October 10, 2019) (“LA Produce”), the Board’s first ruling applying the standard in The Boeing Co., 365 NLRB No. 154 (2017) for determining the validity of rules, policies and handbook provisions under the Act, the Board’s three-member majority opined that the employer’s rules limiting workers’ comments to reporters and blocking them from sharing certain information about clients are legal despite a union’s claims that the rules encroach on workers’ rights under the Act. The decision offers the first glimpse at how the Board’s Republican leadership will balance workers’ rights and their employers’ interests. The Board’s approach in LA Produce is likely to please businesses and their advocates, as it gives greater weight to the business reality and the business justification for an employer’s work rules, policies, and handbook provisions.

In Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019), a number of paid staff of the nonprofit advocacy group joined a petition circulated by Amnesty’s unpaid interns, seeking compensation of their volunteer work.  In response to the petition, the director of the organization made statements that she was “disappointed” that the signers of the petitioners had not availed themselves of the organization’s open door policy to discuss the matter with her and the executive team before signing the petition, and that she did not think the petition was “appropriate” as it was “litigious” and “adversarial.”

As we have previously reported here and here, courts and the National Labor Relations Board (“NLRB”) have released a number of recent decisions favoring the enforceability of arbitration agreements in the employment context.

It is now settled law that class-action waivers in arbitration agreements do not violate the National Labor Relations Act (“the Act”) or infringe on employees’ Section 7 rights under the Act.  In a recent decision, the NLRB extended this holding to allow employers to implement arbitration programs—including those with class-action waivers—in direct response to litigation by its employees.

This summer, the National Labor Relations Board (“NLRB” or “Board”) issued several pro-employer decisions.  Just last month, the NLRB issued two key decisions for employers, which are discussed below.

Worker Misclassification Not a Violation of the NLRA

 As we previously reported, the Board previously invited interested parties and amici to submit briefs in the case of Velox Express, Inc. (15-CA-184006) to address under what circumstances, if any, the Board should deem an employer’s misclassifying statutory employees as independent contractors as a violation of the National Labor Relations Act (“NLRA”).

On September 20, 2019, the NLRB issued a notice of proposed rulemaking to exclude undergraduate and graduate students who perform paid work for private colleges and universities in connection with their studies from the definition of employee under the National Labor Relations Act.  The proposed rule would prevent undergraduate and graduate teaching assistants from unionizing or collectively organizing.

On September 3, 2019, in First Student, Inc. v. NLRB, __ F.3d __ (D.C. Cir. 2019), the court upheld the National Labor Relations Board’s application of the “perfectly clear” doctrine in First Student Inc. v. NLRB, 366 NLRB No. 13 (February 6, 2018).  The “perfectly clear” doctrine affects the right of a labor law successor, which acquires a unionized business, to set new terms and conditions of employment.  Thus, it can have an important impact on the economics of the commercial transaction.

A recent decision by the National Labor Relations Board is another in a string of decisions where the Trump-appointed Board has attempted to rebalance a property owner’s rights with the rights under Section 7 of the National Labor Relations Act of those individuals who work on the property. In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the Board overruled its previous precedent and held that a property owner may prohibit Section 7 activity by off-duty employees of a licensee or contractor performing work on the property owner’s premises.

In Cordúa Restaurants, Inc., 368 NLRB No. 43 (2019), the National Labor Relations Board (“Board”) issued its first major decision following the Supreme Court’s 2018 ruling in Epic Systems, addressing a number of issues of first impression and providing guidance on the permissible scope and implementation of class action waivers.  

 In Cordúa, a group of employees had filed a collective action under the FLSA.  In response, the employer promulgated and maintained a revised arbitration agreement, requiring employees to agree not to opt in to class or collective actions.  In distributing the revised agreement, the employer explained that employees would be removed from the work schedule if they declined to sign it.  In addition, another employee was discharged for filing a class action wage lawsuit against the employer and discussing wage issues with his fellow employees.

The EEOC recently published guidance under its FAQ page regarding the question of how to report nonbinary gender employees on the annual EEO-1 report.  The EEO-1 report is a yearly survey that employers must complete and submit to the agency which requires the employer to identify characteristics of its workforce such as race/ethnicity and sex.  This survey does not allow the employer or the affected employee to abstain from responding, which creates difficult decisions for the employer who must fill-in-the-blank when an employee declines to self-identify.

The National Labor Relations Board has issued the first part of its planned series of revisions to labor union election procedures.  The revisions arrive five years after the Obama-era Board’s controversial 2014 changes that created the so-called “ambush election” procedures.

On August 12, a three-member majority, over a one-member dissent, issued a 113-page proposed rule that would modify three of the Board’s election processes: (1) its handling of “blocking charges,” (2) the restriction on elections after an employer’s voluntary recognition of a union, and (3) the standard for contractually-negotiated recognition of a union in the construction industry.

As California braces for wildfire season, the California Division of Occupational Safety and Health (“CalOSHA”) approved an emergency regulation on July 30, 2019, that requires California employers to monitor air quality for particle pollution, and reduce workers exposure to the potential harmful pollutants from wildfire smoke.

What Is Particle Pollution or Particle Matter?

The Air Quality Index (“AQI”) is calculated for four major air pollutants regulated by the Clean Air Act: ground level ozone, particle pollution, carbon monoxide and sulfur dioxide. The new regulation is aimed at protecting workers from certain particle pollution, also called particulate matter or PM. There are two types of PM – fine particles (2.5 micrometers or less in diameter, referred to as PM2.5) and course particles (particles between 2.5 and 10 micrometers in diameter, referred to as PM10). The new regulation is directed only at the fine particles, or PM2.5, which are produced from all types of combustion, including wildfires. 

In Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019),  the NLRB adopted a new framework for determining a union’s representative status once an employer has made a lawful anticipatory withdrawal of recognition based on disaffection evidence that the union has lost its majority status. Specifically, under Johnson Controls, a union seeking to demonstrate that it has reacquired majority status must do so in a secret ballot election conducted by the Board, rather than in an unfair labor practice proceeding.

Last month, the National Labor Relations Board held that employers do not have to allow non-employees to use their cafeterias or similar public spaces for promotional or organizational activities.  See UPMC Presbyterian Hospital, 368 NLRB No. 2 (June 14, 2019) (“UPMC”).  In so holding, the Board overruled decades-old precedent.

UPMC specifically involved “public spaces,” a sometimes-gray area in union organizing.  Public spaces are somewhat-private areas on employer property that are also open to the public, such as employee cafeterias or snack bars, as compared to fully-public areas such as retail floors.

The Board’s recent decision in Merck, Sharp, & Dohme Corp., 367 NLRB No. 122 (May 7, 2019)  highlights the differences that can arise as a result of the collective bargaining process in the terms and conditions of employment for employers with a divided workforce of non-union and union-represented employees.

In Merck, the Board majority reversed the Administrative Law Judge’s ruling that the employer had violated Section 8(a)(3) and (1) by offering a new, one-time paid holiday, “Appreciation Day” to all of its non-union employees to the exclusion of its union-represented employees.

Here are some factual background and key points of the NLRB’s decision in Merck:

We previously posted on the unfortunate ruling in March 2019, when a Federal Court reinstituted the “Component 2” wage reporting in the annual EEO-1 Report.  The highly controversial requirement – that employers annually report, to the government, W-2 earnings and hours worked for all employees – had been proposed in 2016, but stayed by the Office of Management and Budget (OMB) in 2017.

In a recent advice memorandum, the National Labor Relations Board (the “Board”) set forth its position that drivers for the rideshare company Uber are independent contractors, not employees, for purposes of the National Labor Relations Act (“NLRA”).  This means that the Board, as it is currently comprised, will not entertain efforts of drivers to unionize or seek other protections under the NLRA.  Because it is only a directive from the Board’s General Counsel, as opposed to a decision by the five-member Board, the advice memorandum is not appealable to a federal appellate court, and those who oppose the Board’s position will not have judicial recourse.  The Board’s advice memorandum comes on the heels of the Department of Labor’s recent opinion letter stating that workers for a “virtual marketplace company that operates in the so-called ‘on-demand’ or ‘sharing’ economy” are not employees under the Fair Labor Standards Act, and thus not covered by the law’s minimum wage and overtime requirements.

On May 13, 2019, in Outokumpo Stainless USA, LLC v. N.L.R.B., No. 17-15498 (11th Cir.), the Court of Appeals for the Eleventh Circuit enforced an NLRB order finding that stainless steel producer Outokumpo’s posting of a side letter along with a NLRB settlement notice “constituted non-compliance with the terms of the Settlement Agreement” and that “default judgment was thus proper under the plain terms to which the Company had previously agreed.”

Businesses with at least 100 employees and federal contractors with at least 50 employees must annually file an EEO-1 Private Sector Report disclosing to the Equal Employment Opportunity Commission the number of women and minorities they employ by job category, race, sex and ethnicity.  Covered employers have been providing this traditional race-ethnicity and sex data (referred to as “Component 1 data”) to the Commission for over half a century.  The EEOC uses it to analyze employment patterns and support civil rights enforcement.

Many workplace policies and employee handbooks contain restrictions on employees speaking to the media.  Through these policies, employers often seek to limit what organizational information is disclosed to third parties, and to exercise at least some control over statements that may be attributed to the company.  Such restrictions, though, may be found to violate employees’ rights under the National Labor Relations Act (“the Act”) due to overbreadth when not drafted carefully.  And, while the National Labor Relations Board in the Trump era has seemed willing to revisit pro-worker rulings, the General Counsel last month released an Advice Memorandum affirming this long-standing precedent.

In a recent decision, the National Labor Relations Board reversed decades of precedent regarding a successor employer’s bargaining obligations following the asset purchase of an entity with a unionized workforce.

In a 3-1 decision released last week, the National Labor Relations Board reversed decades of precedent regarding a successor employer’s bargaining obligations following the purchase of an entity with a unionized workforce. The Board’s decision in Ridgewood Health Care Center significantly reined in the application of the “perfectly clear successor” doctrine, which requires a successor employer to maintain the status quo of its predecessor employer’s terms and conditions of employment.

Last August, we reported on OSHA’s proposed rulemaking regarding electronic submissions of workplace injuries and illnesses in our blog entitled, “OSHA Issues Proposed Rule Regarding Electronic Submission Requirements.” OSHA has since issued a final rule which became effective on February 25, 2019.

The new rule rescinds the requirement that employers with 250 or more employees, or employers in certain high-hazard industries, electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  Affected employers must still maintain Forms 300 and 301 on-site and make them available for OSHA inspection, if requested.  Employers covered by the rule now only are obligated to submit Form 300A (Summary of Work-Related Injuries and Illnesses) annually.

In the wake of the #MeToo movement, the EEOC reconvened its task force on sexual harassment in June 2018.  Most recently, in a continued effort  to focus on leading harassment prevention efforts, the EEOC organized the “Industry Leaders Roundtable Discussion on Harassment Prevention.” On March 20, 2019, the EEOC held a roundtable discussion with various industry leaders to strategize regarding effective harassment prevention efforts and to “inform strategies for the next generation of issues flowing” from the EEOC’s task force reports and the #MeToo movement. Top tier representatives from national associations of homebuilders, manufacturers, human resources, retailers, hospitality providers and others attended and offered their perspectives.

On March 12, 2019, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit declined to enforce a bargaining order against the University of Southern California (“USC”), finding that part of the order “runs afoul” with Supreme Court precedent, NLRB v. Yeshiva Univ., 444 U.S. 672 (1980).

The case is Univ. of S. Cal. v. NLRB, Nos. 17-1149, 17-1171, 2019 U.S. App. LEXIS 7203 (D.C. Cir. Mar. 12, 2019) and involves managerial versus non-managerial employees.  Though specific to the academic context, it represents a significant addition to Yeshiva and NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), where the Supreme Court held that “managerial employees” are not covered by the National Labor Relations Act.

Employers breathed a collective sigh of relief in August 2017, when the Office of Management and Budget (OMB) announced it was staying the requirement that employers report W-2 wage information in the annual EEO-1 Report.   Now, though, the reprieve seems over.  On March 4, 2019, the District of Columbia Federal Court ruled that OMB improperly issued the stay without good cause, and put the wage report back into effect.  See National Women’s Law Center v OMB, No. 1:17-cv-2458 (D.D.C.  March 4, 2019).

As anticipated and previously reported, the Republican-controlled Board is overturning Obama-era rulings. For example, in a recent decision, SuperShuttle Inc. DFW, Inc. (16-RC-010963), the National Labor Relations Board affirmed the Board’s adherence to the traditional common-law agency test.  This decision overrules the NLRB’s 2014 Decision, FedEx Home Delivery, 361 NLRB No. 65, which had modified the NLRB’s long-standing test for independent contractor status.

The National Labor Relations Board’s current joint employer standard received a mixed review from a federal circuit court late last month, providing some guidance on how courts may evaluate the Board’s ongoing rulemaking efforts.

The Federal government has entered its 12^th day of partial shutdown, making it the fourth longest in American history to date.   But, not all government departments are affected, and the Department of Labor is one that is not.  The DOL is already fully funded for 2019, so the current stalemate between Congress and the President does not affect its resources.

Before the lame duck period of the 115^th Congress, Rep. Jerrold Nadler (D-NY) and a group of 58 Democrat co-sponsors, introduced the Restoring Justice for Workers Act (H.R. 7109), which would prohibit  employers from requiring employees to sign mandatory arbitration agreements.

Last week, the National Labor Relations Board (the “NLRB”) approved and released its Strategic Plan for Fiscal Years 2019-2022. Congress requires government agencies like the NLRB to formulate strategic plans every four years and release those plans to the public. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. This iteration of the NLRB’s Strategic Plan largely focuses on the agency’s goals to reduce the processing time for unfair labor practice charges and representation cases, acknowledging the problem that “[o]ver the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.”

It’s now officially public: under the National Labor Relations Board’s (NLRB)  General Counsel Peter B. Robb, unions may face greater scrutiny and a higher burden in defending against claims that they violated the duty of fair representation.  Under the National Labor Relations Act, unions owe this duty to its members and can be liable under Section 8(b)(1)(A) if they represent them arbitrarily, discriminatorily, or in bad faith.

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

The EEOC recently released a report highlighting the Commission’s efforts to combat sexual harassment in the past year.  The report, which includes preliminary data for the fiscal year ending on September 30, 2018, illustrates that the Commission has been, in the EEOC’s words, “vigorously enforcing the law” in the wake of the #MeToo movement.

The NLRB’s Office of the General Counsel recently issued an internal directive regarding the manner in which NLRB Regions prosecute duty of fair representation charges against unions.  Under the National Labor Relations Act, unions have a duty of fair representation to the members of the bargaining unit it represents by engaging in conduct that is not arbitrary, discriminatory or in bad faith, particularly with regard to the processing of worker grievances.  Board law has established (and unions typically offer as a defense) that “mere negligence” alone does not amount to arbitrary conduct that would serve to breach the duty of fair representation.

Hunton Andrews Kurth special counsel and former NLRB general counsel Ronald Meisburg recently wrote an article, “Navigating NLRB: Attacking Instability With APA Rulemaking”, as part of Law360’s Expert Analysis series.  

The OFCCP vowed things would change after President Trump’s election.  It is making good on that promise.  The Agency issued three new Directives in the last two weeks, following four others earlier this year.  One of these Directives was long-awaited new guidance on pay analyses, replacing Directive 307.  And, the OFCCP has a new Acting Director, Craig Leen (see our earlier post for the exciting news about the immediate-past Director, Ondray Harris, joining our firm).

The good news for contractors is that the OFCCP’s actions are almost all pro-business, aimed at making the Agency more transparent, objective, and efficient.

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

The National Labor Relations Board (“Board”) has taken the first step to potentially reshape labor law since the May 21, 2018 Epic Systems case, in which the Supreme Court held that class waivers in arbitration agreements do not violate the National Labor Relations Act (“Act”).

On August 15, 2018, the Board vacated its decision and order in Cordúa Restaurants, Inc., 366 NLRB No. 72 (April 26, 2018), where a three-member panel of the Board held that an employee engaged in concerted, protected activity by filing a class action wage lawsuit against his employer.

The Board’s recent vacating of this order is noteworthy for two reasons.

The National Labor Relations Board issued a decision that serves as a reminder to employers of their bargaining obligations upon implementing changes to their business.  Rigid Pak Corp., 366 NLRB No. 137 (2018) involves a unionized company (“Rigid”) that manufactured and sold plastic products.  Rigid maintained an injection-molding division and a blow-molding division housed on different sides of its facility.  The injection-molding division manufactured open-head containers, lids, and crates while the blow-molding division manufactured plastic bottles.  In 2014, Rigid encountered various financial difficulties, and to address them, the company entered into a supply agreement to outsource its work to a third-party manufacturer.

On July 18, the Department of Labor’s (DOL) Office of Labor-Management Standards issued a final rule rescinding the so-called “persuader rule,” a controversial Obama-era regulation requiring employers to disclose advice received regarding opposition to union efforts.

Many in the labor community are familiar with the Machinists Union’s long running effort to unionize Boeing’s South Carolina-based 787 Dreamliner manufacturing facility.  After failing in two previous attempts to organize the entire facility, the Union recently won a bid to organize a “micro-unit” limited to a group of flight line technicians and inspectors.  The Regional Director’s decision to approve the Union’s proposed bargaining unit took most labor practitioners by surprise, given the NLRB’s recent decision in PCC Structurals overturning the ...

As we reported last December, the NLRB, in The Boeing Company, 365 NLRB No. 154 (2017), reversed its workplace rule standard under Lutheran Heritage.  Specifically, instead of assessing whether an employee could “reasonably construe” a workplace rule as barring the exercise of rights under the NLRA, the new test will evaluate the nature and extent of the potential impact on NLRA rights and the legitimate justifications associated with the rule.  The results of the new balancing test will place the rule in one of three categories: Category 1 (lawful work rules), Category 2 (work rules that warrant individualized scrutiny in each case), or Category 3 (unlawful work rules).

In a major win for employers, the U.S. Supreme Court held that arbitration agreements with class action waivers do not violate the National Labor Relations Act (“NLRA”).  The Court’s narrow 5-4 decision paves the way for employers to include such waivers in arbitration agreements to avoid class and collective actions.

The saga continues with regards to the status of a December 2017 NLRB decision that loosened restrictions on employer workplace rules.  As we reported, on December 14, 2017, the NLRB overruled the “reasonably construe” standard for evaluating the validity of employer work rules and replaced it with an evaluation that balances 1) the nature and extent of a rule’s impact on NLRA rights and 2) an employer’s legitimate justifications for the rule.  The new standard is widely-perceived as a victory for employers and indicated the newly-composed NLRB’s intent to revise the law in situations where the previous administration had stretched key legal principles too far, turning the “reasonably construe” standard into a “possibly construe” standard.

Recently, the NLRB created significant uncertainty as to the joint employer test under the NLRA when it vacated a December 2017 decision that resurrected the standard that existed prior to 2015.  Such a standard determines the existence of a joint employer relationship by assessing whether one entity has “actually exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control)” and the control is “’direct and immediate’ (rather than indirect)” and exercised in a manner that is not “limited and routine.”

On April 16, newly confirmed member John Ring was sworn in as the fifth member and Chairman of the National Labor Relations Board, establishing a Republican-controlled Board.   While all has been relatively quiet with regard to rulings from the Board,  we will likely see a rise in activity now that the NLRB (with a  newly-minted majority) is poised to roll back some of the Obama-era rulings.

Federal contractors have been closely following leadership changes at the Office of Federal Contract Compliance Programs (OFCCP).   Most notably, President Trump appointed Ondray T. Harris as OFCCP Director, and Craig Leen as Senior Advisor to the OFCCP.   Both men have backgrounds in management-side private law practice.  This has contractors hopeful they may bring fresh eyes and a more pragmatic approach to the OFCCP.

The National Labor Relations Board (the “NLRB”) and McDonald’s Corp. have reached a settlement agreement in the long-running employment retaliation case brought against McDonald’s that hinges on whether McDonald's Corp., as a franchisor, has enough control over its franchisees to be considered a "joint employer" of the franchisees’ employees.  The case stems from allegations that McDonald’s unlawfully retaliated against franchisee workers who joined the “Fight for $15” movement.  In bringing this case against McDonald’s, the NLRB has argued that even having only “indirect control” over a worker is enough for a franchisor like McDonald’s to be held liable for the employment practices of its franchisees.   The NLRB’s case against McDonald’s was bolstered by the Board’s 2015 Browning-Ferris decision, which departed from decades of legal precedent in holding that entities who merely possessed—as opposed to directly and immediately exercised—control over workers could be deemed joint employers for purposes of assessing liability under the National Labor Relations Act.

Recently the National Labor Relations Board invited interested parties and amici to submit briefs in Velox Express, Inc. (15-CA-184006) to address under what circumstances, if any, the Board should deem an employer’s misclassifying statutory employees as independent contractors constitutes a violation of Section 8(a)(1) of the National Labor Relations Act (“the Act”).  Briefs from parties and interested amici must be submitted on or before April 16, 2018.

The National Labor Relations Board continues to undo its actions overruling the joint employer test of Browning-Ferris Industries, 362 NLRB No. 186 (2015).  Earlier this week the Board vacated its decision in Hy-Brand Industries, the case which had overruled Browning-Ferris.

Shortly after the original Hy-Brand decision, the Board had asked the U.S. Court of Appeals for the District of Columbia Circuit to remand the Browning-Ferris case to the Board.  At the time, the Browning-Ferris case was pending before the court of appeals on the Board’s petition for enforcement and Browning-Ferris’s petition for review, and had been fully briefed and argued.

This week the LGBT community and its supporters won an important case in the Second Circuit Court of Appeals.  In Zarda v. Altitude Express, the Court ruled that Title VII’s ban on sex discrimination extends to same-sex, or “anti-gay,” discrimination.  In that case, Donald Zarda, a gay skydiving instructor, alleged he was unlawfully fired after a customer complained about him disclosing his same-sex orientation.

We previously informed you of the National Labor Relations Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in which the Board  overruled the controversial joint employer test which it had announced in Browning-Ferris Industries, 362 NLRB No. 186 (2015).

On February 26, 2018, the Board entered an order vacating the Hy-Brand decision, 366 NLRB No. 26 (2018).  It did so in light of a determination by the Board’s Designated Agency Ethics Official, that Board Member William Emanuel “is, and should have been ...

On February 12, 2018, the Equal Employment Opportunity Commission (the “EEOC”) approved and released its Strategic Plan for Fiscal Years 2018-2022. Congress requires government agencies like the EEOC to formulate strategic plans every four years and post the plans on their website. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. In a press release introducing the plan, the EEOC indicated the plan “will serve as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”

We have reported on several Board decisions issued by a new Republican majority in the final days of 2017, but questions remain as to what issues the Board will address next to scale back on Obama-era precedent.  In recent weeks, Republican Board Members have provided some hints in a pair of footnotes in two unpublished decisions.

Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017) (“Raytheon”), is one of several decisions issued this month by the National Labor Relations Board’s (the “Board”) new Republican majority which reverse Obama-era precedent.  Raytheon overrules the Board’s decision E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (“DuPont”), which limited the changes employers can make unilaterally in a union environment.  Raytheon clarifies the degree to which employers may rely on past practice to make unilateral changes to terms of employment once a collective bargaining agreement has expired, and, more specifically, offers welcome guidance to employers with regard to continuation of health benefits under those circumstances.

During a week that brought several notable decisions, the National Labor Relations Board issued a ruling on Friday, December 15, 2017, overturning its controversial 2011 Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“Specialty Healthcare”) decision, which held that in order for employees to be included in a collective bargaining unit, employers had to prove the employees shared an “overwhelming community of interest” with one another.  The unions argued that the “overwhelming community of interest” burden was all but impossible to meet and effectively allowed unions to create “micro-units” of any number, group, or sub-group of employees the unions saw fit.  This in turn meant that an employer could be faced with negotiating collective bargaining agreements with multiple groups of employees who often shared the same schedule, workplace, and general terms and conditions of employment, but nonetheless were represented by different locals or divisions of the same or multiple unions.  In one particularly glaring example, the Board approved a union’s request for separate bargaining units in each of nine different graduate student departments at Yale University despite the fact that the union already represented existing, university-wide bargaining units.

On December 14, 2017, in a 3-2 decision along party lines, the National Labor Relations Board (the “Board”) issued a decision in The Boeing Company, 365 NLRB No. 154 (2017) case.  This is a significant and long-awaited victory for employers grappling with unfair labor practice charges stemming from facially neutral workplace rules and signals the Board’s intent to retreat from regulating non-union activity.  Specifically, Boeing  rescinds the onerous workplace rule standard in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) in favor of a new, more rational test.

The National Labor Relations Board issued a much-anticipated decision on Thursday, overruling its controversial 2015 Browning-Ferris decision that unions and employees argued drastically expanded the definition and scope of the Board’s joint-employer doctrine.  In Browning-Ferris, the Board departed from decades of precedent and held that entities who merely possessed—as opposed to directly and immediately exercised—control over workers would be deemed joint employers for purposes of assessing liability under the National Labor Relations Act.  The Board used the Browning-Ferris decision to expand its reach under the joint-employer doctrine to include, for example, companies that relied on staffing agencies and in some cases, parent companies that did not exercise immediate or direct control over a subsidiary’s workers, but had the potential authority to affect certain terms and conditions of employment.  The Browning-Ferris decision faced heavy criticism from employers as well as an appeal of the decision itself to the D.C. Circuit Court of Appeals.

On November 15, the EEOC issued its 2017 annual Performance and Accountability Report, providing details and statistics regarding the Commission’s performance and goals during the period of October 1, 2016 to September 30, 2017.

Federal contractors have extra time this year to submit their annual report.   The Department of Labor has this notice on its website.

NOTICE: IMPACT FROM HURRICANES HARVEY AND IRMA

NOTICE: In order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, Federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely Report or failure to comply with Federal regulations.

In future years, the deadline will return to September 30th.

On September 15, the White House announced that President Trump will nominate Peter B. Robb, a longtime labor and employment attorney, to become the National Labor Relation Board’s next general counsel.  Assuming Robb is confirmed by the Senate, he would likely take over his position  hopefully in early November following the end of the incumbent’s General Counsel’s term and Robb’s swearing in.

On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board.  Kaplan’s confirmation moves the Board one step closer to a Republican majority.  Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.  Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB.  Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.

On June 27, President Trump nominated labor attorney William J. Emanuel to fill the last vacancy of the five seats on the National Labor Relations Board.  Emanuel is a management-side labor attorney who has practiced many years before the Board.  Emanuel has extensive experience arguing in support of employee class and collective action waivers, including involvement in multiple cases that have either been before the Supreme Court or directly led to precedent that the Supreme Court is now set to consider.

As we have said in previous posts, President Trump’s election and now ...

On June 12, 2017, the Office of Labor Management Standards of the Department of Labor (DOL) published a Notice of Proposed Rulemaking that proposes to rescind the controversial “persuader rule” implemented by the DOL under the Obama administration. This rule sought to require disclosure of advice to employers from consultants and attorneys who engage in activities designed to persuade employees not to unionize. This announcement is on the heels of the DOL’s June 7, 2017, press release withdrawing two administrative interpretations issued by the DOL under the Obama administration concerning misclassification of independent contractors and joint employment, as discussed in a previous post. The recent flurry of activity by the DOL indicates that the Trump administration is following through with its promise to loosen many of the onerous restrictions placed on employers by the DOL in the Obama-era.

On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace. Despite the enactment of the ADEA a half-century ago, the participants cited various statistics demonstrating the difficulty still facing older individuals in the workplace. This discrimination faced by older workers in an aging-American workforce coupled with various statements by Chairman Lipnic regarding the ADEA are signals to employers that ADEA enforcement may receive an increased focus during the Trump administration.  In a previous post, we discussed the impact of Chairman Lipnic’s appointment and the direction of the EEOC under her new leadership and highlighted that ADEA enforcement would be one of the agency’s main focuses.

Over the past eight years, the NLRB has been unusually aggressive with its policymaking. Hunton & Williams partners Ryan Glasgow and Kurt Larkin discuss the current state of labor law, the NLRB, and how it might change under the current administration. View the 5-minute video here. 

Over the past eight years, the NLRB has been unusually aggressive with its policymaking. Hunton & Williams partners Ryan Glasgow and Kurt Larkin discuss the current state of labor law, the NLRB, and how it might change under the current administration. View the 5-minute video here. 

President Trump nominated attorney Marvin Kaplan to fill one of two vacancies on the National Labor Relations Board on June 19, 2017.  Kaplan currently works on the Occupational Safety and Health Review Commission and previously served as Republican counsel to the House Education and Workforce Committee which, among other things, provides oversight of the NLRB.  The five-seat NLRB currently consists of only three members: Chairman Philip Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D).  With members appointed (subject to Senate approval) to 5-year terms, the NLRB is typically composed of three members of the sitting President’s party and two from the other party.  If Kaplan’s appointment is approved, it could clear the way for President Trump to appoint a third Republican, giving the NLRB its first Republican majority since 2008.

Two recent rulings have labor law observers questioning where the line is in disciplining employees for making offensive or obscene comments toward their employer. Seemingly at odds are a recent Second Circuit ruling finding such behavior is protected activity under the NLRA and a recent NLRB ruling finding the use of profanity towards management is not protected.

On May 24, 2017, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fl.) each introduced the Representation Fairness Restoration Act in their respective Houses of Congress in an attempt to reverse the controversial 2011 ruling by the National Labor Relations Board in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. (2011). As has been discussed in previous posts, the Board in Specialty Healthcare announced a new standard for determining the appropriateness of a bargaining unit. Under the new standard, unless an employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other portion of the workforce, the requested bargaining unit will be approved. This new standard has encouraged the formation of smaller “micro-bargaining units.” These micro-bargaining units have been an administrative and managerial headache for employers, requiring them to bargain with multiple small units in the same workplace, and sometimes in the same department.

[From Hunton’s Retail Blog]  If you are a retailer, you may have policies and procedures in place regarding who can speak on behalf of your company. Such policies may generally instruct employees not to speak to the press as a representative of the company, and to direct all media inquiries to a particular person or department. Similarly, if you are a retailer, you may have a policy in place that instructs employees to forward any reference requests to your human resources department. These commonplace policies allow retailers to control their public image and protect employee ...

On May 23, 2017, the Department of Labor released its budget proposal for fiscal year 2018 (FY 2018).  The budget contains several cost-cutting measures that reflect the new priorities of the Trump administration.

A notable aspect of the proposed budget is a request to merge the EEOC and OFCCP.  The  proposal aims for “full integration” of the two agencies by the end of FY 2018.  To begin that transition, the proposal suggests sizable drops in the OFCCP’s current funding and staffing.  The OFCCP’s budget is proposed to drop from $105,275,000 to $88,000,000 (a reduction of $17.3 million).  The headcount is proposed to drop nearly 25%, from 571 full-time equivalent (FTE) employees to 440.

The effects of the regulatory reform initiatives of the Trump Administration are beginning to be felt at the Occupational Safety and Health Administration (OSHA) with the formal action by OSHA to finalize withdrawal of the “Volks Rule” regulation. On May 3, 2017, in response to a CRA resolution of disapproval, OSHA published a final rule removing amendments to OSHA’s recordkeeping regulations from the Code of Federal Regulations.

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The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”).  In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review.  This conclusion was fairly uncontroversial.  Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard.  The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.