On August 25, 2023, the National Labor Relations Board issued its decision in Cemex Construction Materials Pacific LLC (N.L.R.B., Case 28-CA-230115) – upending over fifty years of established law and setting forth a new, union-friendly framework for determining when employers are required to recognize and bargain with unions without a representation election. … Continue Reading
The Federal Trade Commission (FTC) and Department of Justice (DOJ) have taken steps to update the Merger Guidelines and overhaul the premerger notification process, each with a sharpened focus on the effect a merger may have on labor markets.
Companies will need to consider the impact of potential mergers on labor markets.… Continue Reading
Last week, the National Labor Relations Board (“Board”) issued a decision changing the legal standard it will use to determine whether workers are “employees” covered by the National Labor Relations Act (“NLRA”), or independent contractors who are not.
Prior to 2019, the Board’s test for determining whether a worker was a statutory employee or independent contractor weighed a variety of factors, including those outlined in the Restatement (Second) of Agency:
(a) the extent of control which, by the agreement, the employer may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
d) the skill required in the particular occupation;
e) whether the employer or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of employer and employee; and
(j) whether the principal is or is not in business.… Continue Reading
Two labor organizations, SEIU Healthcare Pennsylvania (SEIU) and the Strategic Organizing Center (SOC), have lodged a public complaint with the Department of Justice (DOJ) alleging that the University of Pittsburgh Medical Center (UPMC) has wrongfully exercised its power as the largest private sector employer in Pennsylvania to “suppress workers’ wages and benefits, drastically increase their workloads, and prevent workers from exiting or improving these working conditions through a draconian system of mobility restrictions and widespread labor law violations that lock in sub-competitive pay and working conditions.” … Continue Reading
Last month, the National Labor Relations Board (NLRB) ruled that an employer violates Section 8(a)(1) of the National Labor Relations Act (NLRA or Act) when the employer offers employee severance agreements with provisions restricting employees’ Section 7 rights under the Act, such as with overly broad confidentiality and non-disparagement provisions. McLaren Macomb, 372 NLRB No.… Continue Reading
In a divided decision handed down yesterday, January 17, the United States Court of Appeals for the D.C. Circuit partially affirmed the decision of a federal District Court eliminating, in part, aspects of an employer-friendly 2019 Rule put in place by the National Labor Relations Board (“NLRB”) to “ensure fair and accurate voting, transparency, uniformity, certainty and finality, and efficiency” in the union election process by, in effect, slowing some of the Obama-era NLRB’s “quickie election” procedures. … Continue Reading
On December 29, 2022, as part of the Fiscal Year 2023 Omnibus Spending Bill, President Biden signed into law two pieces of legislation that will benefit pregnancy and nursing mothers – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act). … Continue Reading
For the second time in less than a week, the National Labor Relations Board has thrown out a Trump-era standard and reinstated Obama-era rules favorable to labor unions. In Bexar County Performing Arts Center Foundation, 16-CA-193636 (“Bexar County II“), the Board restricted a business owner’s ability to prohibit off-duty contract workers from conducting labor protests on its property.… Continue Reading
Employers that violate the National Labor Relations Act (NLRA) will have to pay workers additional damages under a recently issued precedential decision from the National Labor Relations Board (NLRB or Board).
In Thryv, Inc., the NLRB ruled 3-2 that the Board’s standard remedy for make-whole relief should include consequential damages. The Board now will “expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice” to more fully realize the concept of “make-whole relief” under Section 10(c) of the NLRA. … Continue Reading
Part two of our “Back to School” webinar series will take a look at looming issues for employers as they face an uncertain economic forecast while still dealing with novel challenges created by the COVID-19 pandemic. Despite unemployment rates remaining steady, a changing economy has many employers anticipating the need to reduce their workforce and re-thinking workforce management.… Continue Reading