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
New Episode: France Employment Law Update
Baker McKenzie partner Ben Ho introduces Nadege Dallais to talk about employment laws in France and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.
Key Takeaways:
- It should become easier for international companies in France to demonstrate that they are experiencing financial difficulties
New Episode: Mexico Employment Law Update
Baker McKenzie partner Kerry Weinger introduces Liliana Hernandez-Salgado from Mexico City to talk about employment laws in Mexico and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.
Key Takeaways:
- Companies doing business in Mexico must stay tuned for further developments related to outsourcing
NLRB Vacates Employer-Friendly Joint Employer Decision Over Conflict Of Interest Concerns
The NLRB’s roller coaster ride that is its joint employer standard took another sharp turn Monday, when the Board unanimously agreed to vacate its recent employer-friendly joint employer decision and to restore the joint employer standard adopted in Browning-Ferris.Continue Reading NLRB Vacates Employer-Friendly Joint Employer Decision Over Conflict Of Interest Concerns
New Episode: Brazil Employment Law Update
Be sure to download our 15 minute podcast about employment laws in Brazil. Baker McKenzie partner Kerry Weinger introduces Leticia Ribeiro from Sao Paulo to talk about employment laws in Brazil and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.
Key Takeaways:
- With
CBA Precludes Meal, Rest Break Claims, California Judge Says
We are pleased to report that a California federal judge put to rest claims by a proposed class of Kiewit Infrastructure West Co. workers that they weren’t given adequate meal breaks and rest periods, saying the company was exempted from liability by a valid collective bargaining agreement.
In reconsidering a portion of his November ruling
Supply Chain Interruption Risk From Mid-Term Strikes
Manufacturers and retailers that have long relied on a complex web of contractors and subcontractors to supply necessary parts and materials may face a new risk. A recent decision limiting the effectiveness of a no-strike clause in a collective bargaining agreement may create an additional risk to that supply chain, if not to the employer’s own uninterrupted operations.
No-Strike Clauses
- Most CBAs contain some form of a no-strike clause. They are intended to protect against any interruption to production due to labor unrest during the term of the agreement.
- The Supreme Court has long deemed a strike in violation of a no-strike clause a breach of the collective agreement which a federal district court could enjoin.
- BUT — that assumption may no longer be wholly valid as demonstrated by a recent decision by a federal district court. Just Born, Inc. v. Local Union No. 6, Bakery Workers, 2017 BL 466136 (ED Pa. 2017).
Continue Reading Supply Chain Interruption Risk From Mid-Term Strikes
NLRB Rounds Out Return To Pre-Obama Standards With Duty to Bargain And Unit Determination Decisions
The NLRB closed out its busy week of reversing Obama-era standards in two more high-profile decisions, this time addressing the duty to bargain and bargaining unit determination (see our previous post covering work rule and joint employer standards). On Chairman Phillip Miscimarra’s final day in office, the Board’s two key decisions: (1) returned to a standard returning to broader employer rights to make unilateral changes without providing a union notice and an opportunity to bargain; and (2) eliminated the “micro-unit” bargaining unit standard that constricted employers’ ability to expand proposed bargaining units to include other employees who share a community of interest with those of the proposed unit.
Impact on Employers
The return to previous standards of unilateral change analysis will allow employers more discretion in changing terms of employment consistent with past practice. This benefit to employers most commonly arises with company-wide changes to health insurance plans. Under the previous standard, an employer could be forced to delay implementation of health insurance changes until it had provided notice to the union and an opportunity to bargain, even in the face of longstanding past practice. Many employers with medical plans covering union and non-union employees will have less interruption during open enrollment plan changes.
Elimination of the “micro-unit” standard of bargaining unit appropriateness substantially reduces a union’s ability to cherry pick favorable groups of employees to win elections. Unit determination will return to a more holistic review of shared “community of interest” rather than proceeding based on the union’s extent of organizing. Ultimately, the decision will give employers more ability to defend against union organizing campaigns and keep unions from obtaining representation through small pockets of employees amongst a larger department or facility.Continue Reading NLRB Rounds Out Return To Pre-Obama Standards With Duty to Bargain And Unit Determination Decisions
Signaling Major Change, NLRB Yanks ‘Joint Employer’ Standard And Adopts A More Pro-Employer Stance On Workplace Policies
In a flurry of high-profile decisions issued on the eve of NLRB Chairman Phillip Miscimarra’s term’s expiration, the NLRB has announced employer-friendly standards reversing recently adopted analyses and restoring the historical analyses in perhaps the two most watched (and criticized) categories of employer unfair labor practice (ULP) charges: (1) evaluating work rules for impact on protected concerted activity (formerly the Lutheran Heritage analysis); and (2) joint employer liability (formerly the Browning-Ferris analysis).
Impact on Employers:
As a result of the “new” work rule analysis, employers will be less likely to face scrutiny of employee handbook provisions. Employers now have broader discretion to implement and enforce handbook provisions relating to civility in the workplace and workplace safety (i.e., no cell phone/camera policies, social media). Employers who have dramatically trimmed employee conduct policies have some freedom to reinstate more usable and effective rules, but should note that this area of law is almost certain to fluctuate based on the presidential administration in power.
With the reversal of the joint employer analysis, employers will have less labor risk (bargaining obligations and strikes) when engaging third parties like staffing companies, temporary workers, or co-located workers. Critically, the prospect of becoming bound to a bargaining obligation with another entity’s employees will be substantially less likely. Avoiding joint employer liability will focus more limiting actual control and direction of non-employees and less on the contractual arrangements with other entities supplying those employees. While this change is unlikely to dramatically change the scope of outsourcing, employers can have more certainty of the scope of potential ramifications and liability in using third party workers.Continue Reading Signaling Major Change, NLRB Yanks ‘Joint Employer’ Standard And Adopts A More Pro-Employer Stance On Workplace Policies
Significant Labor Reform In Brazil — Heads Up To US Multinationals
In July 2017, amid political turmoil and protests by the opposition and the labor unions, president Michel Temer sanctioned a new law implementing the controversial labor reform in Brazil.
Some of the law’s most significant changes impacting US multinationals include:
- Labor Rights Negotiation: Agreements negotiated between companies and employees may override statutory requirements relating