Special thanks to our summer associate Brianna Miller for her contributions to this post.

In Trinity Services Group, Inc. v. NLRB, No. 20-1014 (June 1, 2021), the US Court of Appeals for the DC Circuit recently rejected the National Labor Relations Board’s (NLRB) attempt to prohibit employers from expressing opinions the NLRB considers baseless. In reversing the NLRB, the Court held that the National Labor Relations Act (the “Act”) only prohibits employer speech containing a threat of reprisal or the promise of benefits, and that expressions which are merely “views, arguments or opinions” are not unlawful.

No threat of reprisal or promise of benefits means the statement–even if not based in fact–is not illegal

The case arose when an employee discovered a mix-up regarding the amount of her accrued paid leave. When she raised the issue with her supervisor, he pinned the blame on the union. The NLRB and the Court both found there was no objective basis for blaming the union rather than the employer for the mix-up.

The Court examined the provisions in Section 8(a)(1) of the NLRA, which proscribes certain speech. Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain or coerce employees” in the rights guaranteed by the Act. The Court also considered the provisions in Section 8(c) which guarantees parties freedom of speech, specifically that “[t]he expression of any views, argument, or opinion…shall not constitute an unfair labor practice.” The Court sought to reconcile the two provisions, and holding that only speech containing a threat of reprisal or promise of benefits is prohibited by the NLRA, while Section 8(c) protects “any” view, argument or opinion. The Court held the statement the NLRB found illegal contained neither a threat of reprisal or the promise of benefit and thus was not illegal. Undeterred by the plain meaning of the word “any,” the NLRB requested the Court to create an exception under Section 8(c) for statements which are “patently false.” The Court rejected that request as contrary to the plain language of the section.


Continue Reading NLRB’S Attempt at Fact Checking Rejected

Ordinarily, courts defer to the National Labor Relations Board’s (NLRB) factual findings and its remedial orders given the Board’s broad discretion when fashioning a remedy. However, in the D.C. Circuit’s recent decision in RAV Truck & Trailer Repairs Inc. v. NLRB, 997 F.3d 314 (D.C. Cir. 2021), the Court refused to do so.

Sometimes being too persuasive can have a downside, as Peter Robb, former General Counsel of the NLRB can attest. Robb had convinced the NLRB to find an owner had illegally closed his business and had further persuaded the NLRB to order it reopened. Contrary to common practice, the Court refused to rubber stamp the NLRB’s factual findings or to defer to the remedy, stating that the NLRB’s order “does not purport to explain how restoration is even factually possible.” Instead, the Court gave the NLRB a second chance at finding the necessary evidence in the now closed record.


Continue Reading DC Circuit Court Reins in NLRB: No “Rubber Stamp” of NLRB’s Findings and Remedy

A second court of appeals has refused to adopt a National Labor Relations Board (NLRB) decision declaring an employee’s speech violated the National Labor Relations Act.  See Tecnocap, LLC v. NLRB, 2021 U.S. App. LEXIS 18080 (4th Cir., June 17, 2021). Similarly, in a decision issued earlier this month, the D.C. Circuit vacated an NLRB decision, finding instead it was not unlawful for an employer to make a false statement. See Trinity Servs. Grp. v. NLRB, 2021 U.S. App. LEXIS 16314 (D.C. Cir., June 1, 2021) (which we blogged about here). In Tecnocap, the Fourth Circuit deemed the NLRB’s decision out of bounds because in its view the employer’s speech “communicated accurate and lawful information,” and did not constitute unlawful “direct dealing” with its employees.

Continue Reading NLRB Loses Second Recent Speech Decision

In brief

The California Supreme Court recently established new law on two important topics for meal period compliance and litigation. Donohue v. AMN Services, LLC (2021) San Diego Superior Court, Case No. S253677 (February 25, 2021). First, the Court held that California employers cannot round time punches for meal periods. Second, the Court held that time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations. The Donohue Court also implicitly approved a method for employers to use to determine whether meal period premiums should be paid for missed, short or late meal periods.


Continue Reading California Rejects Meal Period Rounding

As a result of the pandemic, many companies have been forced to consider layoffs and furloughs. In this video, our Labor and Employment attorneys discuss how employers should approach such cost-cutting measures to ensure they are not discriminatory and to avoid allegations of differential treatment.

Click here to watch the video.

For the last year, employers have faced unprecedented challenges navigating the impact of the pandemic. Keeping up with scores of new laws, evolving standards, shelter-in-place orders (see our tracker here), quarantine restrictions and more has meant no rest for the weary. And, in the backdrop, there’s the looming threat of employment litigation arising from

Government agencies are increasingly setting their sights on larger targets, ramping up enforcement efforts to root out systemic discrimination. This has important ramifications for employers who may suddenly find themselves defending a claim that, for all intents and purposes, feels like a class action, even though it started as an individual agency charge. With advancements in technology, large data sets on workforces are more common than ever, and government agencies are taking advantage of this and will not hesitate to request data on classes of individuals to search for trends indicating potential discrimination.

EEOC Intensifies Campaign against Systemic Discrimination

In her first public speech since being named as Chair of the EEOC, Charlotte Burrows pledged that the federal government’s workplace civil rights agency will emphasize enforcement of laws to combat systemic discrimination. This commitment to addressing systemic discrimination is consistent with President Biden’s plans to combat racism. (In January, Biden signed an executive order creating a government-wide “racial equity review” and underscoring enforcement of anti-discrimination laws. Read more here.)


Continue Reading Government Agencies Eye Larger Targets: How Employers Can Navigate the Increase in Systemic Litigation