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Ahead of President-Elect Biden’s inauguration in January, employers have a preview of what is likely to come in the form of stronger union and employee rights. On February 6, 2020, the House of Representatives passed the Protecting the Right to Organize Act of 2019 (commonly known as the “PRO Act”), which contains ambitious changes to the current labor landscape. Changes include expanding the scope of joint employer under the National Labor Relations Act (NLRA), narrowing the definition of “supervisor” under the NLRA, expanding the right to strike to include secondary boycotts among other strikes, and providing additional avenues for workers to participate in collective or class actions. While the Senate has not acted on the bill since it was passed by the House, employers would do well to keep an eye on the revival of the PRO Act or any similar legislation. As an update to our recent blogpost on the PRO Act (here), we highlight two changes below that threaten employers if the PRO Act becomes law.

Banning Class Action Waiver in Arbitration Agreements

The PRO Act amends the NLRA to prohibit any employer attempt to execute or enforce any agreement whereby an employee promises not to pursue any class or collective actions. Notably, this provision in effect would overrule the Supreme Court’s decision in Epic Systems Corporation v. Lewis, 138 S. Ct. 1612 (2018). The Epic Systems Court held that an arbitration agreement waiving the right to proceed collectively under the Fair Labor Standards Act (FLSA) is enforceable, subject to generally applicable contract defenses, such as fraud, unconscionability, or duress. Moreover, the Court held that a class action waiver in an arbitration agreement did not violate employees’ rights under the NLRA. In contrast, the PRO Act’s amendments to the NLRA specifically provide that notwithstanding the Federal Arbitration Act (the federal statute authorizing arbitration agreements), an employer’s attempt to enforce class action waivers in an arbitration agreement would be an unfair labor practice under the NLRA.

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Continue Reading PRO Act Likely to Impact Employment Litigation

Non-union employers historically have been little concerned by labor unrest. They will be in for a rude awakening if the Protecting the Right to Organize Act (PRO Act) is signed into law during a Biden administration. The sweeping rewrite of the National Labor Relations Act (NLRA) occasioned by the PRO Act has serious ramifications for union represented workforces as well. The PRO Act would remove the existing ban on secondary strikes, and remove the ban on recognitional strikes lasting over 30 days. The PRO Act would also legalize the intermittent strike and the partial strike. Additionally, the PRO Act bans the permanent replacement of strikers and prohibits terminating employees who engage in strikes. Below, we discuss several ways the passage of the PRO Act would change the labor landscape.
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Continue Reading PRO Act Likely to Bring Labor Unrest to Main Street

America’s political divisions seem to be deepening. And, what’s troubling for employers is that our polarized political climate appears to be affecting employee productivity significantly, according to research by Gartner. According to a nationwide survey in February, 47% of employees reported that debate surrounding the 2020 elections is impacting their ability to get work done.…

Last week the D.C. Circuit Court of Appeals reversed a National Labor Relations Board’s decision involving Weingarten rights, the application of its Wright-Line analysis, and a witness credibility determination. These core principles are no doubt headliners of the NLRB’s Big Top. In one fell swoop, the lion bit the lion tamer, the elephant tossed the mahout, and the trapeze artist lost his grip and came crashing down. Circus Circus Casinos, Inc., v NLRB, No. 18-1201 (June 12, 2020). This is the second recent decision tightening the Wright-Line analysis and will likely result in fewer discharged employees being reinstated. See our August 2019 Alert. “NLRB Holds Pretext Finding Standing Alone Insufficient.”
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Continue Reading NLRB Tumbles From High-Wire in Circus Circus Dispute

We are pleased to share a recent SHRM article, “What to Do When Scared Workers Don’t Report to Work Due to COVID-19,” with quotes from Robin Samuel. This articles discusses several topics including employee’s legal rights and how to respond to an essential worker’s fear of returning to work.

Click here to view the article.…

Government-imposed stay-at-home orders, essential business designations, the Families First Coronavirus Response Act, and employers’ duty to bargain under the National Labor Relations Act recently collided. To complicate matters, unions have proven very aggressive in their demands for information about employer’s responses to COVID-19.

Many unions have demanded decision bargaining over layoffs, or changes in health …

The D.C. Circuit Court of Appeals decision in First Student Inc. v. NLRB suggests the judicially-created “perfectly clear” successorship standard to determine whether a company inherited its predecessor’s bargaining agreement is ripe for a challenge.

A divided panel concluded that under the National Labor Relations Act, the “perfectly clear” successor standard applied to a successor…

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In August, the National Labor Relations Board issued a notice of proposed rulemaking to address three rather limited situations involving employee representation issues. These proposed rules follow 70-plus years of experimentation with a hodgepodge of ad hoc one-off decisions, dramatic changes and frequent reversals in the process of enabling employees to exercise their rights under…

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In a much anticipated decision, the National Labor Relations Board (the “Board”) recently ruled in Velo Express, Inc. and Jeannie Edge that misclassifying employees as independent contractors does not violate the National Labor Relations Act (the “Act”). …
Continue Reading A Resounding “No”: NLRB Nixes Argument that Misclassification Violates NLRA

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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Continue Reading NLRB Rules That Employers May Lawfully Ban Nonemployee Union Activity From Publicly-Accessible Areas