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Posts Tagged ‘NLRA’

Updates on the “Joint Employer” Standard

Posted on: October 10th, 2017

By: Tim Holdsworth

More than two years have passed since the National Labor Relations Board (“NLRB”) handed down its new and controversial joint employer standard in Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). As you may recall, that decision greatly expanded the standard under which an entity could be found as a joint employer under the National Labor Relations Act (“NLRA”). In departing from its own well-established standards, the NLRB announced that they will no longer require a joint employer to possess and exercise authority to control employees’ terms and conditions of employment, but instead will find sufficient control if the entity merely reserves this authority. They also announced they will no longer require the employer’s control to be exercised directly and immediately. Instead, the NLRB declared that control exercised indirectly, such as through an intermediary, can establish the requisite control.

The U.S. Department of Labor (“DOL”) adopted a similar standard for who it considered a “joint employer” under the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act shortly thereafter.

Neither of these controversial steps has fared well. The Browning-Ferris decision has been under attack in courts, while the DOL rescinded its guidance earlier this year under new Labor Secretary Alex Acosta.

Legislative efforts also have been made to give further guidance to businesses that have struggled with the uncertain and convoluted joint employer scheme. Recently, the U.S. House of Representatives Education and Workforce Committee approved a bill that would amend both the NLRA and FLSA to require that a company exert “direct, actual and immediate” control over workers to be considered an employer.

We will continue to monitor this legislation and provide any updates. For now, however, employers need to know that the Browning-Ferris standard is still in effect.

If you have any questions about federal, state, or local wage and hour laws, please contact Tim Holdsworth at [email protected] or any of the attorneys in FMG’s Labor & Employment Law Section.

Do Mandatory Arbitration Agreements with Concerted Action Waivers Violate Employee Rights?

Posted on: September 8th, 2016


By: Pamela Everett

The United States Court of Appeals for the 11th Circuit is poised to address whether Samsung Electronics America, Inc. violated Section 8(a)(1) of the NLRA by requiring its employees to sign an arbitration agreement waiving their rights to maintain class or collective work-related claims in any forum. The ruling in this case could force the Supreme Court to address this issue soon to resolve a widening circuit split.

On August 18, 2015, in the case of Samsung Electronics America, Inc. f/k/a Samsung Telecommunications America, LLC, Case No. 12-CA-145083, Administrative Law Judge Joel Biblowitz struck down a provision requiring employees and the company to arbitrate any class action lawsuit. However, he did not find that Samsung had unlawfully interrogated an employee regarding her protected activity. On February 3, 2016, the NLRB issued Order 363 NLRB No. 105, applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012). In its Order, the NLRB affirmed Judge Biblowitz’s findings that the Samsung violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. However, the NLRB reversed Judge Biblowitz’s ruling that Samsung had not unlawfully interrogated an employee about her protected, concerted activity. The appeal of this case was transferred from the 5th Circuit to the 11th Circuit on February 25, 2016.

Most recently, the Seventh Circuit, in Lewis v. Epic Sys. Corp., and the Ninth Circuit, in Morris v. Ernst & Young, adopted the NLRB’s position that mandatory arbitration agreements with concerted action waivers violate Sections 7 and 8 of the NLRA. However, the Fifth and Eighth Circuits have enforced mandatory arbitration agreements with class action waivers citing the Federal Arbitration Act. Murphy Oil, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015); Cellular Sales of Missouri, LLC v. NLRB, 824 F.3d 772 (8th Cir. 2016).

Stay tuned…

Fourth Circuit Voids NLRB Posting Rule

Posted on: June 18th, 2013

By: Anthony Del RioUnion

Last week the Fourth U.S. Circuit Court of Appeals struck down the National Labor Relation Board’s (NLRB) 2011 poster rule.  The rule required employers to post information regarding employees’ rights to organize under the National Labor Relations Act (NLRA).  The Fourth Circuit is the second appeals court to strike down the rule, the D.C. Circuit having done so a month prior.

The poster language crafted by the NLRB stated that employees had the right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions. Employers who did not post the notice would have been found to have committed an unfair labor practice.

The D.C. Circuit rejected the rule based on First Amendment grounds, but the Fourth Circuit did not find it necessary to reach the constitutional challenge.  The Fourth Circuit disagreed with the NLRB’s proactive rulemaking (historically, it has only been the NLRB’s responsibility to react to NLRA violations, not to proactively prevent them). The Fourth Circuit held that the NLRB had exceeded their legal authority because the National Labor Relations Act did not charge the NLRB with notifying employees of their rights.

NLRB Provides Guidance on Investigation Confidentiality Policies

Posted on: April 22nd, 2013

By: Anthony Del Rio

silenceIn July 2012, the National Labor Relations Board (“NLRB”) ruled that a blanket policy requiring confidentiality during all internal workplace investigations violates employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). The ruling represented a somewhat conflicting position, because one of the primary reasons confidentiality provisions were put in place was to protect employees and witnesses from retaliation.

This past week, the NLRB released an a memorandum that provides guidance on what it considers permissible confidentiality policies in workplace investigations. The NLRB’s memo suggests that, rather than using language that requires all investigations mandate confidentiality, policies should use the following language:

[Employer] may decide in some circumstances that in order to [protect the integrity of an investigation and to protect witnesses from harassment/retaliation], we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Confidentiality in employer investigations is key in order to protect both the employer and the employee. For that reason, a confidentiality provision that has actual force to it is necessary. However, at the same time, avoiding the scrutiny of the NLRB is also very important. For that reason, employers should consider reviewing and modifying their current policies to conform with the language suggested in the NLRB’s memorandum.

Furthermore, as we suggested in our prior coverage of this issue, before prohibiting employees from discussing pending investigations, employers must consider whether there is a real need for confidentiality based on risks of witness coercion, destruction of evidence, or other legitimate business concerns. Blanket prohibitions against discussion of internal investigations without this type of individualized assessment will likely violate Section 7 of the NLRA.

Undocumented Workers May Recover Backwages under the FLSA

Posted on: March 13th, 2013

By: Marty Heller

backwagesOn March 6, 2013, the Eleventh Circuit reaffirmed its prior holding that undocumented workers from foreign countries may recover backwages under the Fair Labor Standards Act (FLSA). In Lamonica v. Safe Hurrican Shutters, Inc., the Defendants argued that the Supreme Court decision Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 138-52 (2002), which found that the National Labor Relations Board (NLRB) could not award backpay to undocumented aliens who are terminated in violation of the NLRB, effectively over-ruled prior Eleventh Circuit precedent on this issue. The Eleventh Circuit disagreed, ruling that an undocumented alien still is an “employee” under the FLSA and the statute does not allow any discretion to courts to determine the appropriate remedy for FLSA violations, because an employer who violates the minimum wage or overtime requirements of the FLSA “shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). The court also noted that awarding backpay to undocumented aliens is consistent with the policies underlying the Immigration Reform and Control Act of 1986, because an award of backpay under the FLSA (unlike an award for backpay under the NLRA) covers work already performed by the employee.