Labor & Unions

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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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As of August 1, companies doing business in Mexico can anticipate that unions will move quickly to legitimize existing collective agreements under a new government-issued protocol. Among other steps, the process includes a vote by covered employees to determine whether they approve the terms of the agreement. Collective agreements must be legitimized by May 1,…

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,…

The Office of Federal Contract Compliance Programs has updated the National Labor Relations Act rights poster that federal contractors and subcontractors are required to display under Executive Order 13496. The changes are minor, consisting of a new telephone number for the NLRB and hearing impaired contact information. But government contractors and subcontractors should replace their…

Hiring Entity:  When are gig workers employees?

Four Government Agencies & Courts:  It depends!

Trying to track the employment status of gig workers will make your head spin. Contractors? Employees? Super heroes?

In the last few weeks, four federal and California state agencies and courts — the US Department of Labor, the National Labor Relations Board, the Ninth Circuit Court of Appeals and the California Labor Commissioner — have all weighed in on the debate. And, the answer is — it depends.

Follow our script below to help make sense of the patchy legal landscape.

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(With thanks to our colleagues in Mexico for this alert.)

What’s changed?

On January 25, 2019, more than 45,000 employees from 45 different manufacturing sites in Matamoros, Tamaulipas initiated a strike, which was allegedly incited by an activist outside the region. Their demands were a 20% salary increase and a significant increase in annual bonus to MXN $32,251.40 (about USD $1,600) per employee.

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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

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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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(Thank you to our Baker McKenzie colleagues in Mexico for sharing this alert.)

As a result of a change in government leadership and recently signed laws and treaties, companies in Mexico now have an important “to do” for 2019: prepare to review any unions that are “on the books” and assess compliance in this new environment.

What are “White Unions”?

  • White Unions in Mexico are usually employer-friendly unions that — due to current legislation deficiencies — can effectively bar entry of other unions who might otherwise attempt to gain a foothold in the workplace. They have little to no actual membership and do not actively represent workers. Historically, any union could petition for unionization without the need to prove the support of workers.

What changed?

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