By Nelson Cary on Posted in Elections,RulemakingWhile Covid-19 has slowed down certain things at the NLRB, it hasn’t stopped the agency from functioning. The NLRB announced today that it will publish its final rule on certain employee free choice issues tomorrow, April 1. The rules will address three major issues: The NLRB’s “Blocking Charge” Policy. The term comes from the NLRB’s… Continue Reading
By Nelson Cary on Posted in Elections,RulemakingToday, the NLRB announced that it will delay its new election rule. This follows on the heels of the NLRB’s decision last week to delay election proceedings generally due to the Covid-19 situation. As readers of this blog know, the NLRB published its final election rule in December last year. The rule’s net effect was… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingCovid-19 has disrupted the operations of many employers and governmental functions. The NLRB is no different. Here is a summary of where things stand tonight. Regional Offices Many regional offices have been closed for varying periods of time. The NLRB is sending out updates on these events as they occur and has devoted a page… Continue Reading
By Nelson Cary and Amanda Miggo on Posted in NLRB,RulemakingToday, the NLRB announced their final rule on how to analyze joint-employer status under the NLRA. This is good news for employers, as the final rule makes it harder to prove that workers are jointly employed by affiliated businesses. By publishing this final rule, the NLRB is revitalizing the joint-employer standard that the NLRB applied… Continue Reading
By Nelson Cary and Thomas Loeb on Posted in Rulemaking,Union OrganizingOn December 13, the NLRB announced significant changes to its election representation procedures. The final rule will be published tomorrow, and become effective on April 16, 2020. The net effect of the rule is to substantially alter the so-called “quickie” or “ambush” election rule adopted by the Obama NLRB in 2014. The NLRB started this… Continue Reading
By Nelson Cary and Emily Papania on Posted in NLRB,RulemakingLast week, by a 3-1 vote, the NLRB approved a proposed rule that would classify graduate students, who conduct paid teaching and research, as students rather than “employees” under federal labor law. This rule would divest graduate students of their right to unionize and would end a recent wave of graduate student unionization efforts at… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in NLRB,RulemakingOn August 12, 2019, the NLRB published a Notice of Proposed Rulemaking in the Federal Register regarding election procedures that the NLRB majority contends is essential to preserving employees’ right to free choice of representation. The proposed rule contain three changes to current NLRB election regulations: First, it replaces the current blocking charge policy with… Continue Reading
By Lauren Sanders on Posted in NLRB,RulemakingOn June 27, 2019, NLRB Chairman John Ring spoke at the 36th Carl A. Warns, Jr. and Edwin R. Render Labor and Employment Law Institute in Louisville, Kentucky. Chairman Ring (R), a former management attorney who previously worked for the Teamsters before graduating from law school, was confirmed by the Senate in April 2018. Chairman… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingThe joint employer issue at the NLRB continues to be a hotbed of activity. We last updated our readers on this issue in mid-December. Here’s what has happened since then: Developments in the Courts. At the end of the year, the U.S. Court of Appeals for the D.C. Circuit ruled in the appeal of the… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in NLRB,RulemakingThe NLRB’s rulemaking on the joint employer issue has again been delayed. Earlier this month, the AFL-CIO filed a memorandum (pdf) alleging that business groups secretly had “extensive input” on the proposed rule. The AFL-CIO requested a 30-day extension of the time to submit comments on the proposed rule. On Monday, the NLRB announced that… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingOn Friday last week, the NLRB (in a 3-1 decision) carried through on its previous announcement and published a notice of proposed rulemaking that would address the hotly contested joint employer issue. “Joint employer” refers to the question of whether one business can be considered the employer of another business’ employees. Think of situations like subcontracting,… Continue Reading
By Nelson Cary and Jesse Meade on Posted in Department of Labor,RulemakingAs previously anticipated on this blog, the Department of Labor (DOL) has formally rescinded the so-called “Persuader Rule.” Under court injunction preventing enforcement since November 2016, the DOL on Wednesday announced that the controversial rule had been withdrawn. In a press release, Deputy Assistant Nathan Mehrens stated: “By rescinding this Rule, the Department stands up… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingThe NLRB intends to publish a notice of proposed rulemaking on the joint employer issue sometime this summer. The NLRB had previously announced its intent to consider rulemaking on this issue, and our prior post on the subject explains in detail the background of the issue for those who are unfamiliar. The disclosure came in… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingThe NLRB today published a notice that it was considering issuing a proposed rule on joint employer status. “Joint employer” refers to the question of whether one business can be considered the employer of another business’ employees. This question has been a hot topic for many years. It was at issue in the Obama NLRB’s much… Continue Reading
By Nelson Cary and Lauren Sanders on Posted in Elections,RulemakingOn Wednesday, the NLRB announced that it would ask for public input on the 2014 Election Rule, sometimes known as the “ambush” or “quickie” election rule. The 2014 Election Rule speeds up the representation election procedure, allowing union votes to occur in much less time than was previously the case. For example, as we previously reported,… Continue Reading
By Nelson Cary and Cory Catignani on Posted in Department of Labor,RulemakingAfter months of waiting and wondering how the new administration would handle the appeal of the nationwide injunction prohibiting enforcement of the Obama Administration’s “persuader rule,” we finally have our answer. The DOL is proposing to rescind the rule through notice and comment rulemaking. Thus, on June 2, the DOL, under recently confirmed Secretary Alexander… Continue Reading
By Nelson Cary and Cory Catignani on Posted in Department of Labor,Rulemaking,Union OrganizingThe Trump Administration has acted quickly to address some of the rules promulgated by the Department of Labor (“DOL”) during the Obama presidency. One such rule is the overtime regulation that would more than double the salary threshold for employees to be exempt from overtime requirements. The overtime rule was invalidated by a Texas district… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingWith the dust still settling from our national election this week, I’ve been digesting what it means for the NLRB. So, here are some initial thoughts. Two of the five NLRB positions are vacant now. But, the details on the appointment process are messy. The NLRB members President Obama selected have staggered terms that will… Continue Reading
By Nelson Cary, Cory Catignani and Andy Smith on Posted in Rulemaking,Union OrganizingA federal district judge in Texas today issued a nationwide injunction prohibiting enforcement of the Department of Labor’s (“DOL”) persuader rule, saying it threatens employers’ rights to secure legal advice about union organization. The Texas court is the first court to block enforcement of the rule. In a contrary ruling just last week, a Minnesota… Continue Reading
By Nelson Cary and Allen Kinzer on Posted in Rulemaking,Union OrganizingThe DOL has recently interpreted its new Persuader Rule to exclude an agreement or arrangement signed before July 1, 2016, even if the services and payments occur after July 1. In an email exchange between the U.S. Chamber of Commerce and the DOL, the DOL said: “Services and payments made pursuant to a multi-year agreement,… Continue Reading
By Nelson Cary and Cory Catignani on Posted in Courts,Rulemaking,Union OrganizingChallenges to the Department of Labor’s (“DOL”) new persuader rule have reached a critical stage. Parties opposing the rule, including industry associations and law firms, have asked courts in three separate lawsuits to stop the DOL from enforcing the rule while the courts determine whether the rule is invalid. Several states, as well as the… Continue Reading
By Nelson Cary and Cory Catignani on Posted in Rulemaking,Union OrganizingOn March 24, 2016, the Department of Labor issued its long-anticipated final rule regarding the advice exemption to the persuader rule in the Labor-Management Reporting and Disclosure Act (“LMRDA”). The new rule changes the test that has been in place for more than 50 years and significantly expands the types of activities and information that… Continue Reading
By Nelson Cary on Posted in Rulemaking,Union OrganizingThe DOL issued its new persuader rule today. The final rule is largely unchanged from the proposed rule that was originally published in 2011. As expected, the DOL’s new interpretation departs from decades of precedent to expand the definition of “persuader” activities while limiting the definition of “advice” activities. As a result of this new… Continue Reading
By Nelson Cary on Posted in Rulemaking,Union OrganizingPolitico reported earlier today that the DOL sent its persuader rule, covered in numerous posts on this blog, to the Office of Management and Budget (OMB). I did some digging on the OMB’s website, and sure enough, the rule is now in its hands to conduct a regulatory review. The DOL had previously announced its intent… Continue Reading
