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,
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.
Continue Reading Supply Chain Interruption Risk From Mid-Term Strikes
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).
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
After a contentious confirmation process, on April 7, 2017, the Senate confirmed Tenth Circuit Judge Neil Gorsuch to fill the Supreme Court seat that has been vacant since the death of Justice Antonin Scalia in February 2016. On April 10, 2017, Gorsuch, a former clerk of current Justice Anthony Kennedy, was sworn in by Kennedy. Now that Gorsuch has taken his oath, he is ready to participate in the Supreme Court’s next round of oral arguments, which are set to begin on April 17.
Continue Reading Neil Gorsuch Fills Vacant Supreme Court Seat
On August 1, 2016, the U.S. Department of Labor and Doctors Associates Inc. (Subway Restaurants) announced a voluntary agreement formalizing their ongoing collaboration. This agreement is a first of its kind and seeks to ensure that franchise owners have the tools necessary to comply with wage and hour laws. Since 2012, Subway has made available a platform for the DOL to provide training and resources to franchisees. Despite the DOL’s efforts, other companies have reportedly been reluctant to enter into similar agreements due to fears that other government agencies will use such an agreement as evidence of a joint employer relationship. Interestingly, Subway has been collaborating with the DOL for over three years and although this collaboration has been very much in the public eye, no agency has indicated that such a relationship would make them a joint employer. The DOL hopes the fact that Subway, the world’s largest franchisor, entered into the compliance agreement will encourage other companies to follow suit. Given the various government agencies’ joint employer efforts, all companies, whether franchisors or not, should analyze their own specific circumstances before entering into a similar agreement.
Continue Reading Does Subway’s Compliance Agreement with the DOL Really Raise Joint Employer Concerns?
On August 27, in a highly anticipated decision, the National Labor Relations Board adopted a new joint employer standard, dramatically changing and expanding the long-held standard previously in use. Regardless of whether your workforce is unionized or not, this new standard has far-reaching implications.
Continue Reading Big Changes for Joint Employers: What You Need to Know
