Management Memo

As featured in #WorkforceWednesday:  This week, we examine how several recent pronouncements and actions by the National Labor Relations Board (NLRB) and its General Counsel’s office are creating new challenges for employers, both union and non-union.

As featured in #WorkforceWednesday:  This week, we look at the potential “game changing” legal and policy shifts coming to labor relations.

The Protecting the Right to Organize (PRO) Act, if enacted, would make the most significant changes to the National Labor Relations Act since the National Labor Relations Board (NLRB) was created in 1935. The PRO Act is a top priority of the union movement in the United States and is supported by President Biden, who claims to be the most pro-union president in U.S. history.  Attorney Steve Swirsky discusses the potential impact the PRO Act ...

As featured in #WorkforceWednesday:  This week on our special podcast series, Employers and the New Administration, we look at what President Biden’s support for unions throughout his political career might mean for labor management relations.

In this episode, Glenn Spencer, Senior Vice President of the Employment Policy Division at the U.S. Chamber of Commerce, and attorney Steve Swirsky discuss what employers can expect from the NLRB under the Biden administration. Attorney David Garland leads the conversation.

See below for the video edition and the extended ...

Featured on Employment Law This Week:  An employee’s Facebook rant was protected activity, says the Second Circuit.

In the midst of a tense union campaign, a catering company employee posted a profanity-laced message on Facebook. The post insulted his supervisor and encouraged colleagues to vote for unionization. The employee was subsequently fired. Upholding an NLRB ruling, a panel for the Second Circuit found that the post was protected under the NLRA and the employee should not have been terminated. The Court noted that Facebook is a modern tool used for organizing. Our ...

Featured on Employment Law This Week - Philip Miscimarra, Acting Chairman of the National Labor Relations Board (NLRB), has given a strong indication of the changes likely to come once President Trump fills vacant seats on the NLRB.

In a sharply worded dissent, Miscimarra doubled down on his disagreement with the NLRB’s controversial 2014 rule on union representation elections. Miscimarra argues that the rule’s heavy emphasis on election speed interferes with an employee’s right to make informed decisions on union representation and is inconsistent with the requirements ...

The year-end episode of Employment Law This Week  looks back at the biggest employment, workforce, and management issues in 2016.

Our colleague Laura Monaco discusses the National Labor Relations Board's decision in Miller & Anderson, which expanded the already-relaxed joint-employer standard adopted by the Board in its August 2015 decision in Browning Ferris Industries. 

The show also reviews the Trustees of Columbia University decision on collective bargaining and union organizing.  

Watch the segment below and read Epstein Becker Green's recent Take 5

Featured on Employment Law This Week® - New York City is trying to force certain employers to sign "labor peace" agreements with unions.

Mayor Bill de Blasio has signed an executive order mandating that a property developer receiving at least $1 million in “Financial Assistance” require its large retail and food service tenants to accept “Labor Peace Agreements.” These agreements would prohibit the companies from opposing union organization and provide what some consider to be affirmative support and assistance to unions. City Development Projects that were ...

Featured on the new episode of Employment Law This Week: Employers must have specific waivers to make unilateral policy changes when bargaining with a union.

That's according to the NLRB, which once again clarified its "clear and unmistakable" waiver standard to restrict employers’ midterm changes. In this case, an employer relied on a broad management rights clause in its contract with the union to make unilateral changes to specific policies. The NLRB found that the union had not waived its right to bargain over those changes because the contract did not refer to the policies ...

Featured on Employment Law This Week: The NLRB reverses its mixed-guard unit recognition rule. If a union represents both security guards and other employee groups, then an employer’s decision to recognize the union is voluntary. Before this decision, employers could also withdraw their recognition if no collective bargaining agreement was reached.  Now, employers must continue to recognize the union unless and until the employees vote to decertify it in an NLRB election.

View the episode below or read more about this story in a previous blog post, written by Steven M ...

Featured on Employment Law This Week: The National Labor Relations Board (NLRB) finds the hiring of permanent replacements for strikers to be an unfair labor practice.

In a 2-1 decision that could benefit unions during contract negotiations, the NLRB found that a continuing care facility in California violated federal labor law when it hired permanent replacements after a series of intermittent strikes. While the NLRB and courts have long held that an employer’s motivation for hiring permanent replacements is irrelevant, in this case, the board held that if the hiring is ...

One of the top stories featured on Employment Law This Week: The U.S. Court of Appeals for the Seventh Circuit has joined the National Labor Relations Board in finding that arbitration agreements containing class action waivers violate the National Labor Relations Act (NLRA).

At issue is a collective and class action by employees of Epic Systems about overtime pay. The company was seeking to dismiss the case based on a mandatory arbitration agreement that waived an employee’s right to participate in a collective or class action. Unlike the Fifth Circuit, the Seventh Circuit ...

Steve Swirsky, one of the co-editors of this blog, is featured on Employment Law This Week. He discusses the NLRB's General Counsel memo that outlines the agency's top enforcement priorities for 2016.

The General Counsel for the National Labor Relations Board has issued an internal memo that offers employers insight into his office’s initiatives and emphasis this year. The memo describes the types of cases that must be submitted to the Division of Advice for review, rather than decided by the Regional Office where the charge was filed. Among other priorities, the General ...

One of the featured stories in Employment Law This Week is the DOL's publication of its controversial final rule around labor relations consultants.

The so-called “Persuader Rule” requires employers to disclose when they hire a consultant to help fight attempts at unionization. But the rule, as written, is potentially much broader and could require employers to disclose information about a wide range of consultants and others who they rely on for training and communication.

View the episode below or read more about the new rule in an earlier blog post.

A featured story on Employment Law This Week is the NLRB's crackdown on employers restricting the content of personal emails sent through the employer’s email system.

In 2014, the NLRB ruled that employees who have email through their employers can use that email to communicate about union-related issues. In a recent election at Blommer Chocolate Company, the union claimed that company email rules interfered with the voting process. Employees were allowed to use the company’s email system for personal emails, but were prohibited from expressing personal opinions in their ...

The top story on Employment Law This Week – Epstein Becker Green’s new video program – explores the push towards unionization of West Coast on-demand drivers.

Drivers for personal transportation company WeDriveU, who drive Facebook employees to and from work, have voted to unionize with the Teamsters. This brings the total to more than 450 shuttle drivers in Silicon Valley who have joined the union in the past twelve months. And last week, Seattle became the first city to give on-demand drivers the right to unionize over pay and working conditions. Hundreds of drivers in the ...

The top story on Employment Law This Week - Epstein Becker Green's new video program - is the NLRB’s recent Browning-Ferris decision, where it loosened the standards for determining who qualifies as a joint employer. It’s a critical ruling that affects many different industries and employers and the episode sums it up very succinctly.

The episode features a soundbite from this blog's co-founder Steven Swirsky, who has written extensively on the decision. See below to view the episode or read more about this important ruling and its implications.