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

After the NLRB’s aggressive pro-union stance during President Obama’s term, the Board is poised for change under President Trump. On January 23, 2017, President Trump named Philip A. Miscimarra—the sole Republican of three current Board Members—Acting Chairman of the Board. Further, as the Board traditionally has five Members, President Trump will nominate two Members to fill the current vacancies. Assuming President Trump nominates two Republicans as expected, the Board will have a Republican majority for the first time in over nine years. Although it is unclear how far the Board will shift from its recent pro-union stance, three key decisions could be overturned by a Republican-controlled Board. Continue Reading Is a More Business-Friendly NLRB Coming? What it Could Mean for Employers

On January 31, President Trump nominated Judge Neil Gorsuch from the Tenth Circuit Court of Appeals to fill the Supreme Court seat previously held by the late Justice Antonin Scalia.  Judge Gorsuch is known as a conservative, a textualist, and a talented writer—much like Justice Scalia.  So, what effect would a Justice Gorsuch have on employers? Continue Reading What Does Gorsuch Supreme Court Nomination Mean for Employers?

While no one knows exactly how Donald Trump’s election as President will impact labor and employment laws in the country, it is a safe bet that there will be changes. Because Trump was virtually silent on the campaign trail regarding the specifics of any employment law policies, we are left to speculate on any upcoming changes.  We provide a brief overview of our best educated guesses on what changes could be in store given the election results.  Given Trump’s position on government enforcement and his pro-business stance, there is an expectation of changes to several employment-related laws. Continue Reading What Trump’s Election Means for Employment Laws

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?

Earlier this month, the National Labor Relations Board issued a memorandum announcing the steps it will take to report complaints alleged against federal contractor employers in order to comply with the Fair Pay and Safe Workplaces Executive Order 13673.  In doing so, the NLRB became the first government agency to implement reporting procedures under the Executive Order, though regulations have not been finalized.  Noteworthy, it appears the NLRB will use the Executive Order’s reporting requirements as a pressure point to further encourage the early settlement of complaints filed against companies.  While it remains to be seen exactly how the Executive Order’s “blacklisting” procedures will impact federal contractors, it is important that companies understand the potential impact of the Executive Order and the planned procedures of the various administrative agencies, including the NLRB, to comply with the Executive Order. Continue Reading Federal Contractors Take Note – NLRB Will Report Complaints Unless Companies Agree to Settlement

There has been no slow down to the National Labor Relations Board’s attention to employer handbook policies that purportedly can discourage “protected concerted activity.”  We previously suggested five handbook provisions to update, but the continuous wave of Board decisions has expanded what language the NLRB considers to have a “chilling” effect on employees exercising their Section 7 rights to communicate about their wages, hours, and other terms and conditions of employment.  As with our previous post, this is true even for employers without a unionized workforce.  In light of the Board’s continued focus, the following handbook policies may deserve another look: Continue Reading The NLRB’s Relentless Attack on Handbooks: Four More Policies to Update

On July 11, 2016, the National Labor Relations Board issued its opinion in Miller & Anderson, Inc., and held employer consent is no longer necessary for a union to organize a single bargaining unit consisting of both the employer’s regular employees and temporary workers that are supplied from other companies. In the wake of last year’s Browning-Ferris decision and the NLRB’s expansion of its joint employment standard, Miller & Anderson seems to be the latest effort of the NLRB to broaden the reach of the National Labor Relations Act. The decision reversed previous Board precedent, which gave employers discretion to consent to the inclusion of workers who are supplied by other companies into a single bargaining unit. Now, combined units may be approved if the workers share a community of interest. This decision is significant as it greatly expands employer’s bargaining obligations toward temporary workers and other supplied workers, and potentially lengthens the relationship between the parties.

For more details regarding the Miller & Anderson decision, as well as its potential impact on employers, click here.

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