September 19, 2018

September 18, 2018

Subscribe to Latest Legal News and Analysis

September 17, 2018

Subscribe to Latest Legal News and Analysis

Top Five Labor Law Developments for July 2018

  1. Business lobbyists reportedly are urging the Trump Administration to not re-nominate National Labor Relations Board (NLRB) Member Mark Gaston Pearce (D) for a third term. Pearce’s term at the five-member Board is scheduled to expire on August 27, 2018. Pearce has drawn the ire of business groups for what many believe to be an anti-business approach on many issues before the Board. Pearce would like to be re-nominated and remain on the Board. It is unclear whether Congressional Democrats will pressure the Administration to re-nominate Pearce and whether Pearce would have the votes to be reconfirmed if he is re-nominated.

  2. The Board’s decision-making processes are going through significant changes. Memorandum ICG 18-06 from Associate to the NLRB General Counsel Beth Tursell outlines plans to centralize representation case decision writing, to streamline the Division of Advice’s review of unfair labor practice charges, and to encourage Board Regional Directors to delegate decision-making authority to supervisors, including for approving dismissals, withdrawals, and some settlements. Additionally, the Memorandum announces establishment of new committees within each NLRB region that will consider certain pre-election disputes, research election issues, and draft orders for review by regional directors. This follows NLRB General Counsel Peter Robb’s earlier announcement to regional directors that he hopes to consolidate the Board’s regional offices. That proposal was met by resistance from many Board staff members.

  3. The U.S. Department of Labor’s “persuader” rule was rescinded on July 17. The regulation would have expanded reporting by consultants working on behalf of employers engaged in union election campaigns. On March 24, 2016, the Department of Labor (DOL) had published its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA). Under the DOL’s proposed interpretation, employers/clients, as well as consultants/attorneys, would have been required to report to the DOL all arrangements in which an “object” (directly or indirectly) of the services provided by the consultant/attorney was to persuade employees about the manner of exercising the employees’ “right to organize and bargain collectively through representatives of their own choosing” under federal labor law.

  4. The NLRB is reconsidering employees’ right to use their employer’s email system for union organizing and other protected activity. On August 1, 2018, the NLRB invited the public to file briefs on whether the Board should overrule Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held employees who have been given access to their employer’s email system for work-related purposes must be permitted to use that system, on non-working time, for National Labor Relations Act (NLRA) Section 7 communications, unless the employer can demonstrate that special circumstances necessary to maintain production or discipline justify restricting that right. The Board in Purple Communications had overruled Register Guard, 351 NLRB 1110 (2007), where it held employers could lawfully restrict employees’ non-work email use as long as they do so in a non-discriminatory manner. In its invitation for briefing, the Board asked the public: 1) whether it should adhere to, modify, or overrule Purple Communications; 2) what standard should replace Purple Communications, if overruled; 3) if Register Guard is revived, what exceptions should be maintained for employee use of email, if any; and 4) how electronic communication systems other than email should be treated, whether or not Purple Communications is overruled.

  5. An employer did not violate the Act when it terminated an employee who violated the employer’s policy against sharing certain confidential documents on social media, the Board’s Division of Advice has found. Kumho Tires, 10-CA-208153 (Div. of Advice, June 11, 2018, released July 2018). The employee had posted on social media a photograph of another employee’s bonus request form. The employer argued that the employee violated the employer’s social media policy against sharing “internal reports, policies, procedures, or other internal business-related confidential communications.” The Division of Advice found the work rule was lawful under The Boeing Company, 365 NLRB No. 154 (Dec. 15, 2017), because employees would be unlikely to interpret the rule as restricting the sharing of information lawfully in employees’ possession. The Division also found the rule was lawful as applied in the termination, because the employee was not authorized to have another employee’s bonus request form.

Jackson Lewis P.C. © 2018

TRENDING LEGAL ANALYSIS


About this Author

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
Shareholder

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented management in dozens of counter-organizing drives and participated in countless unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

404-586-1835
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

212-545-4080
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Chad P. Richter, Jackson Lewis PC, Alternative Dispute Resolution, Attorney
Principal

Chad Richter is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C.

Mr. Richter’s practice is divided into three areas: (1) preventive counseling and training; (2) traditional labor law; and (3) workplace litigation. With regard to Mr. Richter’s preventive practice, he routinely provides day-to-day advice and counseling to management on a variety of employment law matters including human resource management, traditional labor relations, employment discrimination, wage and hour, privacy, disability leave management, and reductions in force. Mr....

402-827-4233