Labor

Expert Analysis

• NLRB GC's Remedies Memos Should Concern Employers

  

  Two recent memos from the National Labor Relations Board’s general counsel, endorsing stronger remedies for certain unfair labor practice charges, mean businesses must carefully administer discipline and negotiate bargaining agreements — otherwise, they may be forced to choose between risky litigation or full capitulation, say attorneys at Obermayer Rebmann.

• College Athlete Employee Status Would Raise Novel Issues

  

  A recent declaration that the National Labor Relations Board's office of general counsel now considers certain college athletes employees, if formally adopted by the NLRB, could bring new questions for colleges and athletes on workers' compensation, unemployment insurance, tax liability and more, says Mike Ingersoll at Womble Bond.

• ERISA Ruling Reveals Big-Picture Health Benefit Issues

  

  While a California federal court’s recent ruling in Asner v. SAG-AFTRA Health Fund concerned fiduciary duty claims under the Employee Retirement Income Security Act, a closer look at the details raises broad questions about retirees’ rights to lifetime health benefits and the staying power of employer-sponsored health care, says Mark DeBofsky at DeBofsky Sherman.

• 2nd Circ. Ruling Signals Decisive Shift To NLRB Contract Test

  

  In its recent International Brotherhood of Electrical Workers v. National Labor Relations Board decision, the Second Circuit explicitly approved an NLRB test that gives employers flexibility to address unforeseen circumstances not addressed in union contracts, and signified the end of a decades-old test requiring a clear and unmistakable waiver of bargaining rights, says Frederick Braid at Holland & Knight.

• What Employers Should Know About NLRB Top Cop Priorities

  

  A recent memo released by the National Labor Relations Board's new general counsel signals changes in enforcement priorities, and both unionized and nonunionized employers should note potential shifts in precedent for contract work, handbooks, electronic media and more, say Robert Lian and James Crowley at Akin Gump.

• Employer Lessons From 7th Circ. Ruling On Labor Violations

  

  The Seventh Circuit’s recent affirmation of the National Labor Relations Board’s finding against Mondelez Global contains lessons for employers on unlawful discharges, unilateral changes and information requests — which also apply to mandatory vaccination and other pandemic-related policies, say Andrew Goldberg and Christina Wernick at Laner Muchin.

• How High Court Takings Ruling Compares With Prior Analysis

  

  In setting new precedent on regulatory takings with its recent decision in Cedar Point v. Hassid, the U.S. Supreme Court did not overrule the test established in its 1978 Penn Central v. New York City opinion, but it is possible that Penn Central would be decided differently today, says John Walk at Hirschler.

• Under Biden, Nonunion Employers Can't Ignore Labor Law

  

  The National Labor Relations Board under President Joe Biden will likely expand employee protections in the nonunion workplace, so employers must consider potential liabilities, especially regarding investigations, handbooks and discipline for worker misconduct, says Daniel Johns at Cozen O'Connor.

• NLRB Saves Scabby But Must Go Further On Free Speech

  

  The National Labor Relations Board recently reaffirmed that unions have the right to display banners and the rat-shaped balloon Scabby on public property near a work site shared by multiple employers, but the absence of full First Amendment protection for peaceful labor picketing has become increasingly untenable in view of U.S. Supreme Court decisions, says Catherine Fisk at the University of California.

• How Purchasers, Debtors Can Navigate CBAs In Bankruptcy

  

  As commercial bankruptcy filings rise, debtor and purchasing employers have several available tools to modify or eliminate preexisting collective bargaining agreements, with nuanced considerations established by the Bankruptcy Code and case law, says Stephania Sanon at McDermott.

• Lessons On Protected Conduct From Starbucks NLRB Ruling

  

  A recent National Labor Relations Board ruling against Starbucks, finding that the company violated the National Labor Relations Act, helps to illustrate examples of protected conduct and highlights some best practices for employers considering adverse action against employees who have engaged in union activities, says Geoff Gilbert at Constangy Brooks.

• DC Circ. Labor Ruling Is A Win For Employer Free Speech

  

  The D.C. Circuit’s recent decision overturning the National Labor Relations Board's finding that a Trinity Services manager's misstatements blaming the union for paid leave issues amounted to an unfair labor practice preserves workplace free speech, but reminds employers to uphold certain best practices when communicating with workers, say Scott Nelson and Lukas Moffett at Hunton.

• NLRB Can Bypass Senate Gridlock To Impose Labor Reforms

  

  The Protect the Right to Organize Act, which would dramatically expand federal labor law and is endorsed by the Biden administration, is likely to fail in the Senate, but there are many elements of the pro-union bill that may be implemented by the National Labor Relations Board without legislation, say attorneys at Jackson Lewis.