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in Department of Labor,RulemakingAs previously anticipated on this blog, the Department of Labor (DOL) has formally rescinded the so-called “Persuader Rule.”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preventing enforcement since November 2016, the DOL on Wednesday announced that the controversial rule had been withdrawn.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
By Nelson Cary on Posted in Elections,Rulemaking,Union OrganizingAnother federal court, this one in Washington, D.C., has come down on the side of the NLRB’s new election rule. Deciding a case the U.S. Chamber of Commerce and several other employer organizations filed, and to which one employer was added, the court found that the NLRB did not act “arbitrarily or capriciously” in issuing… Continue Reading
By Nelson Cary and George Stevens on Posted in Courts,NLRB,RulemakingOn Thursday, the NLRB won its first courtroom victory in connection with its “ambush” or “quickie” election rule, which went into effect earlier this month. It was not, however, in one of the two cases that have been pending for some time, and that we have previously discussed on this blog. Instead, the NLRB’s victory… Continue Reading
By Nelson Cary and Greg Scheiderer on Posted in Elections,NLRB,RulemakingEarlier this week, Region 8 of the NLRB held a training session in Cleveland, Ohio, on the upcoming changes to the procedures for representation cases that will go into effect on April 14, 2015. This training session was one of more than 35 sessions the NLRB is hosting for practitioners across the country. Additionally, NLRB… Continue Reading
By Nelson Cary on Posted in Rulemaking,Union OrganizingAs forecast two weeks ago on this blog, President Obama yesterday vetoed the Congressional Review Act resolution that would have prevented the NLRB from proceeding with the implementation of its ambush/quickie election rules adopted earlier this year. In his “memorandum of disapproval,” the President referred to the rules as “common-sense, modest” changes. He also noted that employees… Continue Reading
By Nelson Cary on Posted in NLRB,RulemakingUpdating our previous post, a second group filed suit (pdf) against the NLRB last week, challenging its ambush election rule. This time, the challenge comes from The Associated Builders and Contractors of Texas Inc., who are joined by the same organization’s Central Texas Chapter and the National Federation of Independent Business/Texas. They have asked the… Continue Reading
