National Labor Relations Board

Appellate Division Holds Attorney General’s COVID-19 Retaliation Claims are Preempted by Federal Law

May 17, 2022

By Hannah K. Redmond

In February 2021, New York State Attorney General, Letitia James, filed a lawsuit against Amazon alleging that the retailer failed to sufficiently prioritize hygiene, sanitation and social distancing at its fulfillment center and delivery station in New York City.1 The Complaint also alleged that Amazon unlawfully terminated employees at those locations who complained about conditions they perceived to be unsafe.2 The Complaint asserted causes of action under various sections of the New York Labor Law (NYLL), including Sections 200, 215 and 740, all of which “relate to the obligations of New York businesses to adequately protect the health and safety of employees and to refrain from discrimination or retaliation against employees who complain about potential NYLL violations.”3

Read More >> Appellate Division Holds Attorney General’s COVID-19 Retaliation Claims are Preempted by Federal Law

Employers Take Notice: The NLRB, the DOL and the EEOC Are Working Together to Combat Employer Retaliation

March 4, 2022

By Nihla F. Sikkander and Sarah Zucco

The National Labor Relations Board (NLRB), the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL), three federal agencies that enforce major federal labor and employment laws, are joining forces to combat employer retaliation. Employers must be aware that these federal agencies are moving forward with concrete steps to jointly coordinate efforts to take action and litigate against workplace violations and are incentivizing workers to come forward with their concerns.

Read More >> Employers Take Notice: The NLRB, the DOL and the EEOC Are Working Together to Combat Employer Retaliation

Lessons from Google: What Employers Should Know About Minority Unions

February 16, 2021

By Thomas G. Eron and Hannah K. Redmond

It is no secret that private sector union membership has dramatically decreased over the past several decades. This reality has forced labor organizers to get creative with their efforts. Perhaps this is one reason why stories of a union presence at tech industry giant, Google, have recently gained so much attention. Reports of a “minority union” at Google began to swirl earlier this year after a group of several hundred Google employees announced their creation of the “Alphabet Workers Union.” Named for Google’s parent, Alphabet, Inc., the Alphabet Workers Union was supported by, and now affiliated with, the Communication Workers of America. The union claimed its membership quickly grew to more than 800 members.

Read More >> Lessons from Google: What Employers Should Know About Minority Unions

No Time to Waste – The NLRB and Signs of What’s to Come Under the New Administration

February 10, 2021

By Stephanie H. Fedorka and Erin S. Torcello

The first few weeks in the Biden administration have been nothing short of busy. At the National Labor Relations Board (Board), it seems like there has been no time to waste in prioritizing items on the administration’s agenda.

Only hours after being sworn into office on Jan. 20, 2021, President Biden took unprecedented action and fired Trump-appointed General Counsel Peter Robb. Former General Counsel Robb was reportedly offered the opportunity to resign, but refused, and was then fired. Robb’s term was set to expire in November of this year. A day later, Biden terminated second in command, Deputy General Counsel Alice Stock. President Biden appointed Peter Sung Ohr to serve as Acting General Counsel of the Agency. Ohr, most recently served as the Regional Director of Region 13 of the NLRB in Chicago.

Read More >> No Time to Waste – The NLRB and Signs of What’s to Come Under the New Administration

Arbitration Agreement Does Not Bar New York State Division of Human Rights Proceeding

January 28, 2021

By Nicholas P. Jacobson and Thomas G. Eron

Earlier this month, the federal court for the Western District of New York issued a decision in Charter Communications, Inc. v. Derfert, No. 20-cv-915, 2021 WL 37726 (W.D.N.Y. Jan. 4, 2021) holding that an employment arbitration agreement did not preclude a hearing before the New York State Division of Human Rights (the Division) on an employee’s discrimination claim.

Read More >> Arbitration Agreement Does Not Bar New York State Division of Human Rights Proceeding

National Labor Relations Board Reverses Obama-Era Decision Regarding Standard for Asserting Jurisdiction Over Faculty Members at Religious Institutions

June 17, 2020

By Mary E. Moran

On June 10, 2020, the National Labor Relations Board (the NLRB or the Board) issued a decision that reversed a 2014 Board decision regarding the test for exercising jurisdiction over faculty members at religious institutions.  In Bethany College, the Board held that the test for exercising such jurisdiction that was established by the Board in Pacific Lutheran University was inconsistent with U.S. Supreme Court and D.C. Circuit Court of Appeals precedent, and restored the test established by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB.

Read More >> National Labor Relations Board Reverses Obama-Era Decision Regarding Standard for Asserting Jurisdiction Over Faculty Members at Religious Institutions

NLRB Issues Final Rule on Joint Employer Status

March 2, 2020

By Stephanie H. Fedorka

On February 26, 2020, the National Labor Relations Board issued its final rule regarding the standard for determining joint employer status.  The final rule overturns the standard articulated in the Board’s 2015 Browning-Ferris decision and returns to the pre-Browning-Ferris “direct control” standard.  The final rule also provides greater clarity regarding the application of the standard.  The purpose of the rule is to increase predictability and consistency with respect to the Board’s determination of joint employer status under the National Labor Relations Act.  The final rule will go into effect on April 27, 2020.

Read More >> NLRB Issues Final Rule on Joint Employer Status

NLRB Reinstates Former Legal Standard for Deferral to Arbitration

December 27, 2019

By Subhash Viswanathan

On December 23, the National Labor Relations Board reversed its 2014 decision in Babcock & Wilcox Construction Co, Inc., and reinstated the legal standard for deferring to the arbitration process that had existed prior to the Babcock decision. The Babcock decision created an extremely stringent standard for deferral which made it more likely that an employee who had been disciplined or discharged would be able to litigate an unfair labor practice charge even after losing an arbitration proceeding. In United Parcel Service, Inc., the NLRB held that the arbitration process collectively bargained by the parties should be accorded more deference in unfair labor practice cases in which an employee alleges that discipline or discharge violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act.

Read More >> NLRB Reinstates Former Legal Standard for Deferral to Arbitration

"Quickie" Elections Are Not So "Quickie" Any More: NLRB Amends Union Representation Election Procedures

December 18, 2019

By Subhash Viswanathan

On December 18, 2019, the National Labor Relations Board published a final rule in the Federal Register amending its union representation election procedures to eliminate several aspects of the "quickie" election rule that became effective on April 14, 2015.  The "quickie" election rule provided unions with a significant advantage in the representation process by, among other things, shortening the time period between the filing of a petition and the scheduling of an election and limiting the issues that may be litigated by employers in a pre-election hearing.  The final rule will become effective on April 16, 2020.

Read More >> "Quickie" Elections Are Not So "Quickie" Any More: NLRB Amends Union Representation Election Procedures

Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing

October 4, 2019

By Robert F. Manfredo

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

Read More >> Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing

NLRB Adopts Employer-Friendly "Contract Coverage" Standard for Determining Whether Unilateral Changes Violate the NLRA

September 13, 2019

By Justin A. Reyes

On September 10, 2019, the National Labor Relations Board issued a favorable decision that makes it easier for employers to demonstrate that a unilateral change in terms and conditions of employment was permitted by the collective bargaining agreement.  In M.V. Transportation, Inc., a three-member majority of the Board (over one dissent) abandoned its previous "clear and unmistakable waiver" standard and adopted the more lenient "contract coverage" standard.

Read More >> NLRB Adopts Employer-Friendly "Contract Coverage" Standard for Determining Whether Unilateral Changes Violate the NLRA