The UK Cabinet and EU leaders have now approved a draft withdrawal agreement setting out the terms of UK withdrawal from the EU. With the agreement still to be approved by the European and UK parliaments, our London Employment & Compensation team recently released a report analyzing the potential people implications of a “deal” verse “no deal” scenario. Click here to access.

For more Brexit-related news, please visit our Brexit blog or our central Brexit information hub.

Government contractors are familiar with the obligation to retain minority or women-owned businesses as subcontractors to obtain government work. Increasingly, apex private sector businesses require participation by minority or women-owned businesses as a condition of obtaining work, as well.

A recent decision by the federal court for the Southern District of New York is a cautionary tale, and highlights the care required when terminating a minority business enterprise (MBE) sub-contractor. Annuity Funds Operating Engineers Local 15 v. Tightseal, No. 17-CV-3670 (S.D.N.Y. August 14, 2018).

Continue Reading Termination Of An MBE Can Lead To Liability

A recent decision by the National Labor Relations Board left experienced labor practitioners scratching their heads. In Tschiggfrie Properties Ltd. v. NLRB, a three-member panel of the Eighth Circuit did more.

The panel vacated the NLRB’s decision in a case involving an employee who was fired for abusing his employer’s Wi-Fi and for sleeping on the job. (The same employee also initiated the process of unionizing the workforce and served as an observer for the union election.) Before the appellate court, the NLRB unsuccessfully argued that a showing of a nexus, or a link between the employee’s protected activity and the adverse employment action, was not required to satisfy the employee’s initial burden in a wrongful termination case. The Eighth Circuit found that the NLRB misapplied the burden of proof, vacated the NLRB’s order and remanded the case with instructions to reconsider whether the general counsel could make the appropriate showing.

Click here to read more about this case, the reminder its decision serves and next steps employers should take.

Mark Twain famously said: “Reports of my demise have been greatly exaggerated.” So it is true with reports that employers can breathe easier with the new Trump National Labor Relations Board.

The recent decision in Circus Circus Casinos Inc. is a stark reminder that even as the mid-term elections in the Trump presidency approach, the Obama era, at least at the NLRB, is not over. The decision in Circus Circus imposes on employers an additional administrative step to clear before conducting investigatory interviews during the disciplinary process. After receiving a signal (even if not a direct request) that an employee desires representation, employers may not proceed with interviews until a union representative can be identified and obtained.

Click here to read on.

Recent guidance issued by the NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, is a continuing testament to the NLRB’s impact on the changing legal landscape regarding workplace rules. On June 6, 2018, Peter Robb issued a 20-page Memorandum to the NLRB Regional Offices titled “Guidance on Handbook Rules Post-Boeing.”

Continue Reading The NLRB Issues Useful Guidance Providing Additional Clarity On Work Rules

But Are They Right for Your Workforce?

The US Supreme Court issued a highly anticipated decision on May 21, 2018 in Epic Systems Corp. v. Lewis, holding that class action waivers in arbitration agreements are fully enforceable, notwithstanding the right to engage in concerted activity under the National Labor Relations Act.

Although employers now have a tool to effectively eliminate most employment class actions through the use of arbitration agreements, several other important nuances remain to be considered before rolling out an arbitration program.

Click here to learn more about the decision and what it means for your business.

Welcome news for employers: companies can require their workers go through arbitration to pursue any legal claims against their employers, rather than go to court or join together in class lawsuits or grievances, the US Supreme Court held today in a 5-4 vote.

Writing for the majority in three consolidated cases (Epic Systems Corp. v. Lewis, NLRB v.  Murphy Oil  USA, Inc., and Ernst & Young LLP v. Morris), Justice Neil Gorsuch said the Federal Arbitration Act sets a strong policy favoring the enforcement of arbitration agreements, and employees of the three companies failed to show they had any right to disregard the arbitration agreements they signed.

The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA — much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies.

The ruling means that companies can enforce their class action waiver agreements and their employees will have to pursue their claims in individual arbitration proceedings. Please stay tuned for more to come from us on the actions employers should take now in response to this important decision.

Last week, a team of Baker McKenzie partners (Andy Boling, Doug Darch, Bill Dugan and Miriam Petrillo) led a lively roundtable in Deerfield, Illinois on the topic of civility in the workplace.

Attorneys from the EEOC (Greg Gochanour, Regional Attorney for Chicago Office) and the NLRB (Paul Hitterman, Regional Attorney for Region 13 of the NLRB) joined us in leading the discussion. Topics included disciplining employees for uncivil workplace behavior, the enforceability of confidentiality restrictions on witnesses during internal investigations and the NLRB’s newly issued test for reviewing employee work rules.

Here, we share a “top 10” list to highlight the principal takeaways from the program.

Continue Reading Top 10 Takeaways For Managing A Diverse Workplace From Our Civility Seminar

Embracing mediation as a way to avoid litigation is not a sure-fire solution as one employer recently learned. See Unite Here Local 30 v. Volume Services, Inc., No. 16-55528 (9th Cir. January 26, 2018). Mediation is often employed as an alternative method of dispute resolution for its perceived advantages over traditional lawsuits (e.g. it can be quicker, less expensive and less formal than a court-driven process). For these reasons and others, many labor unions and employers frequently choose mediation as an alternative to arbitration.

Continue Reading Mediation Agreement In CBA Leads To Litigation