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This week, the National Labor Relations Board finally came to its senses and adopted the contract coverage test for cases alleging an employer had unlawfully, unilaterally changed employees’ terms and conditions of employment. MV Transportation, Inc. 368 NLRB No. 66 (2019). This week’s decision is likely to change the forum unions select for the enforcement of their labor agreements. Ironically, the decision may compel employers to consider additional bargaining rather than litigation before an arbitrator given there is little opportunity to appeal an adverse arbitration award.

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In August, the National Labor Relations Board issued a notice of proposed rulemaking to address three rather limited situations involving employee representation issues. These proposed rules follow 70-plus years of experimentation with a hodgepodge of ad hoc one-off decisions, dramatic changes and frequent reversals in the process of enabling employees to exercise their rights under

Chicago is the most recent city to adopt a “predictive scheduling” ordinance, the Chicago Fair Workweek Ordinance.

Effective July 1, 2020, employers subject to the Ordinance must provide advance notice of work schedules to covered employees. If changes are made to the posted schedule, employers must pay additional wages, “predictability pay,” as a penalty. This penalty applies to both increases and reductions of shifts.


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The NLRB recently determined that merely discrediting an employer’s justification for a union activist’s termination (a pretext finding) could be insufficient to demonstrate the termination was unlawful. Electrolux Home Products, 368 NLRB No. 34 (2019). This outcome was preordained by the NLRB’s decision in Wright Line, 251 NLRB 1083 (1980) and was reinforced as an acceptable legal analysis by the Supreme Court in a decision under Title VII, St. Mary’s Honor Center v. Hicks, 509 US 502 (1993). The logic of the rule found its voice in ABF Freight Systems v. NLRB, 510 US 317 (1994) in which the Court determined it was permissible for the NLRB to order the reinstatement of an employee even after the employee lied under oath during the NLRB hearing, as to do otherwise, would “distract the Board” with collateral credibility disputes.

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Historically employers could not restrict labor organizing activity in employer-owned, publicly accessible spaces. But, last month, in UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2 (2019), the NLRB reversed nearly 40 years of precedent holding that employers violate the National Labor Relations Act (NLRA) if they prohibit nonemployee labor organizers from publicly-accessible spaces.

Post UPMC, employers may adopt and implement neutral policies regulating the use of employer-owned spaces open to the public (such as cafeterias) and may lawfully apply those policies to exclude nonemployee union organizers. Employers with spaces open to the public should consider whether to adopt and enforce a content neutral (nondiscriminatory) bar to nonemployee solicitation or distribution in the publicly accessible spaces on their property.


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This article was originally published on Law360.com.

Three recent decisions arising under the National Labor Relations Act highlight that ambiguity and inattentiveness are the twin banes of labor and employment attorneys. In all three cases, the dispute arose because two personnel policies or approaches overlapped, opening the way for conflicting claims. As these cases demonstrate,

As we previously reported, in January, in Rosenbach v. Six Flags Entertainment Corp., the Illinois Supreme Court held that a plaintiff need not plead an actual injury beyond a per se statutory violation to state a claim for statutory liquidated damages or injunctive relief under the Illinois Biometric Privacy Act (BIPA).

(By way of reminder, the Illinois BIPA prohibits gathering biometric data such as fingerprints without notice and consent. It also requires data collectors adopt a written policy and a destruction policy for data which is no longer required.)

In the wake of Rosenbach, dozens more class actions have been filed in Illinois state courts. Following Rosenbach,plaintiffs can seek injunctive relief and statutory penalties under the BIPA on a class-wide basis. Despite the flurry of activity by the plaintiff’s bar over the past several years, Illinois courts have only recently started addressing such claims. The rulings since Rosenbach demonstrate a strong commitment not to deviate from the Illinois Supreme Court’s holding.
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Originally published in Benefits Law Journal.

Champagne and a steak dinner have traditionally marked celebrations at the close of a corporate deal. Celebrations these days are being marred by a party pooper—Employee Retirement Income Security Act (ERISA) pension plan successor liability.

Increasingly, courts are delivering a “pay up now” notice to the buyer of financially

This article was originally published on Law360.com.

Taking advantage of an unaddressed area of law, and his virtually unfettered discretion to control the prosecution of unfair labor practice allegations, the general counsel of the National Labor Relations Board has returned the board’s deferral policy to its historical practice. Once again, unfair practice charges in a

On January 25, 2019, the National Labor Relations Board reaffirmed its adherence to the traditional common law independent contractor test for determining whether a worker is an employee or an independent contractor under the National Labor Relations Act.

In SuperShuttle DFW, Inc., the Board expressly overruled its 2014 FedEx Home Delivery decision. In FedEx, the Board drastically reduced the significance of entrepreneurial opportunity in the determination of independent contractor status. FedEx emphasized the right to control factors relevant to the so-called “economic realities” test and gave weight to whether a worker was in fact “seizing” actual opportunities and rendering services as part of their own independent business.

SuperShuttle DFW, Inc. is significant as it abandons the Obama-era standard and gives a boost to companies using contract labor by elevating the importance of entrepreneurial opportunity in the independent contractor analysis. Insodoing, the Board returns the legal framework to its traditional common law roots and adds the examination of entrepreneurial opportunity. The decision suggests that moving forward, the Board “evaluate the common-law factors through the prism of entrepreneurial opportunity when the specific factual circumstances of the case make such an evaluation appropriate.”


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