- Eighth Circuit Cato amicus defends right of videographer couple in Minnesota not to film same-sex weddings for hire if they don’t care to [Ilya Shapiro and Reilly Stephens] Meanwhile: “California Court Upholds First Amendment Right Not to Bake Cake for Same-Sex Wedding” [Eugene Volokh, who takes a different side from Cato on expressive status of cake creation]
- “It’s all about the shared love for Disney.” Is that why they’re suing? [Hugo Martin, Los Angeles Times]
- “Whistleblower Lawyers See a Growth Area: Customs Fraud” [Henry Cutter, WSJ]
- Supreme Court hears oral argument in Janus, the public employee union fees First Amendment case [Ilya Shapiro/Washington Examiner, SCOTUSBlog coverage by various authors, Amelia Thomson-DeVeaux/538, earlier]
- Copyright: “US Judge dismisses Taylor Swift ‘haters’ case as too ‘banal'” [Mark Savage, BBC]
- Dangerous for an advice letter from an NLRB lawyer to say that references to gender-based differences in James Damore memo “were discriminatory and constituted sexual harassment” Ken at Popehat, Robert VerBruggen/NRO, Jerome Woehrle]
Posts Tagged ‘National Labor Relations Board’
“NLRB restores sanity to its rules on employee handbooks and joint employment”
Some seriously good news, finally, from the National Labor Relations Board, which had hurtled left in recent years but now has a majority of Republican appointees: 1) it overturned its notorious Browning-Ferris rule, which had threatened to impose liability on companies allegedly responsible for the working conditions of employees of other firms, as in franchise and outsourcing contexts; 2) it announced in Boeing Co. that it would drop a standard under which it had found unlawful, as interferences with NLRA rights of collective action, various widely used employer handbook policies on subjects “from confidentiality, to insubordination, to the use of company logos, to photography bans, and to conflict-of-interest rules.” [Jon Hyman]
Employer actions to curb sexual harassment might violate National Labor Relations Act
“EEOC recently announced the availability of ‘respectful workplace’ training, which [prompted a] concern about whether overly prescriptive rules about workplace behavior (like “no negativity” mandates) might chill workers’ NLRA rights.” NLRB rulings in recent years have included protecting workers in some circumstances from being disciplined for cussing out their bosses, and the NLRB has announced the employer policies against negativity and gossip may also violate the law. At the same time, tolerating hostile and personal talk can expose an employer to liability under harassment law. The agencies are hoping to work out the contradictions among themselves. [Kate Tornone, HR Dive]
The battle to overturn the NLRB’s joint employer rule
“The U.S. House of Representatives passed a bill by a vote of 242-181 on Nov. 7 that would require a business to exercise direct control of another entity to be considered a joint employer. If also passed by the Senate and signed into law by the president, the Save Local Business Act would legislatively overturn the National Labor Relations Board’s (NLRB’s) 2015 Browning-Ferris Industries decision, which ruled that entities may be joint employers even if one exercises only indirect or potential control over the other.” [Allen Smith, SHRM] Under Browning-Ferris, “franchisors and companies that employ subcontractors and temporary staffing agencies may frequently be regarded as ‘joint employers’ of franchise and subcontractor employees” and held legally responsible for their treatment [National Right To Work, quotes me] Business, horrified by the rule, has made its overthrow a major priority [Connor Wolf/Inside Sources, Sean Higgins/Washington Examiner and more] Earlier here, here, etc.
Waivers of class actions against employers
The Supreme Court will resolve a circuit court split on whether employment agreements under which workers agree to “arbitrate disputes with their employers individually, rather than bringing class-action lawsuits collectively with their co-workers, are valid….In an unusual twist, the administration will face off against an independent agency of the federal government, the National Labor Relations Board (NLRB).” [Lawrence Hurley and Robert Iafolla, Reuters, earlier here, here, here, and arbitration generally] Monday was oral argument on the trio of Murphy Oil, Ernst & Young, and Epic Systems [Amy Howe, transcript]
Labor law roundup
- Interesting admission by Canadian unionist: right-to-work laws in U.S. states “are bleeding jobs out of Canada.” [Adrian Morrow, Globe and Mail, reporting that Canadian NAFTA negotiators are seeking to persuade their American counterparts to enact a federal ban on such state laws]
- And another try: unions challenge right to work laws in court as a “taking” of their property [Lyle Denniston, Constitution Center, earlier]
- “D.C. Circuit Calls Out NLRB in Ruling on Union Access to Employer Property” [Minal Khan, Barnes & Thornburg, John Doran, Sherman & Howard (“epic benchslap”), on Janice Rogers Brown opinion in Fred Meyer Stores v. NLRB]
- Study confirms that “unionization is negatively related to job satisfaction.” Selection effect, causal effect, both? [Patrice Laroche, Harvard Business Review]
- Encylopedia of Libertarianism, published in 2008 and now free online from Cato, has an article on labor unions by Charles Baird;
- First Circuit upholds 2011 NLRB flip-flop: union in successor employer situation entitled to “reasonable period” of not having its representation challenged no matter what employees may wish [NLRB v. Lily Transportation]
Eighth Circuit: employer may not dismiss over picket-line racial slurs
In strike situations, the law can wind up getting flipped on the question of when an employer may or must dismiss an employee for racial slurs that create a hostile environment. An Eighth Circuit panel in Cooper Tire v. NLRB, over a dissent from Judge C. Arlen Beam, approved a court’s decision overturning an arbitrator’s ruling and reinstating the offending worker who had yelled the slurs at replacement workers. More: Terry Carter, ABA Journal.
Congress can correct NLRB’s joint employer mistake
House members introduce “Save Local Business Act (H.R. 3441), which would restore the traditional joint employer standard that the NLRB upended and modifies the definition of joint employer under the Fair Labor Standards Act to be consistent with the definition under the National Labor Relations Act.” [Trey Kovacs, CEI, Connor Wolf/Inside Sources Ben Gitis, American Action Forum, earlier on Browning-Ferris and joint employer standard]
Labor and employment roundup
- Chicago and Cook County paid sick leave ordinances spell “major headaches” for employers [Kimberly Ross and Craig Thorstenson, Ford Harrison]
- “DoL Withdraws Joint Employer Guidance” [Kim Slowey/ ConstructionDive, Catherine Strauss and Tami Earnhart, earlier here, etc.]
- How South Dakota came to deregulate hair braiding [John Hult, Sioux Falls Argus-Leader]
- Emmanuel Macron has big plans, very much including reform of France’s deeply un-libertarian labor law [Sylvain Cypel, New York Review of Books]
- State of play at NLRB on employees’ taping things: “You can still limit recordings in your workplace, as long as you don’t ban all recordings outright.” [Janette Levey Frisch]
- Over business protests, NYC’s left-leaning council and mayor keep enacting union-backed burdens on employers [Connor Wolf, earlier; related here, here, here, etc.]
Right to curse out one’s boss on Facebook
“It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) dashed that hope.” [Jon Hyman] More: Nixon Peabody, Eric Goldman.