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NLRB Continues to Define Employer Ability to Protect Property and Access; Overturns Union-Friendly Precedent

On Friday, September 6, 2019, the National Labor Relations Board (the “Board”) issued its third decision of the summer regarding employers’ ability to restrict access by nonemployees to its property (see prior analysis: Board Restricts Non-Employee Access to Public Spaces and Board Restricts Access of Off-Duty Contractors). In Kroger Mid-Atlantic, 368 NLRB No. 64 (Sep. 6, 2019), the Board determined that an employer can bar nonemployees from protesting against the employer on the employer’s property while still allowing nonprotest activities such as solicitations for charitable donations or civic groups. In doing so, the Board found the employer’s actions were not discriminatory and overturned a twenty-year-old decision that greatly expanded nonemployee access to employer property. In Kroger Mid-Atlantic, the Board overruled Sandusky Mall and its progeny, finding that it “improperly stretched the concept of discrimination well beyond its accepted meaning in a manner that finds no support in Supreme Court precedent or the policies of the Act.”
Continue reading “NLRB Continues to Define Employer Ability to Protect Property and Access; Overturns Union-Friendly Precedent”

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NLRB Rules that Employers Can Prohibit Access of Off-Duty Employees of Contractors for Section 7 Rights

A property owner generally has the right to control access to its property, including the rights to restrict hours of access, to prohibit certain activities when access is granted, and exclude or prevent access. These rights were affirmed by the National Labor Relations Board (“NLRB”) in a recent decision Friday. Bexar County Performing Arts Center Foundation, 3668 NLRB 46 (2019). Generally, the property owner must balance its managerial interests with its own employees’ Section 7 rights under the National Labor Relations Act (“NLRA”). However, access by nonemployees involves a different analysis. The Supreme Court previously recognized a “distinction ‘of substance’ between the union activities of employees and nonemployees.” Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992). In Bexar County, the NLRB was specifically determining the property owner’s rights relative to off-duty employees of a licensee who are neither employees of the property owner or nonemployees. Continue reading “NLRB Rules that Employers Can Prohibit Access of Off-Duty Employees of Contractors for Section 7 Rights”

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Salary History Bans and the Illinois Amended Equal Pay Act: What Employers Need to Know Now

On July 31, 2019, Governor J.B. Pritzker signed a bill amending the Equal Pay Act of 2003 (“Act”).

The amendments to the Act prohibit Illinois employers and employment agencies from asking job applicants or their prior employers about an applicant’s salary history. The amendments are effective as of September 29, 2019.

Continue reading “Salary History Bans and the Illinois Amended Equal Pay Act: What Employers Need to Know Now”

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Department of Labor Announces Proposed Joint Employer Status Rule

Authors: W. Eric Baisden, Adam Primm

On April 1, 2019, employers received good news with the Department of Labor’s (“DOL”) proposed regulation limiting joint employer liability. As expected (see prior alert regarding NLRB rulemaking), the proposed rule narrows when companies can be considered a joint employer.

Continue reading “Department of Labor Announces Proposed Joint Employer Status Rule”

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California Court Distinguishes U.S. Supreme Court Ruling Reaffirms PAGA Claims Are Not Subject To Mandatory Arbitration/N.J. Amendment Invalidates Mandatory Arbitration

Authors: Eric Baisden and Adam Primm

Last month, a California Court of Appeal reaffirmed that California’s Private Attorney General Act (“PAGA”) is outside the scope of the Federal Arbitration Act (“FAA”) and the Supreme Court’s 2018 opinion in Epic Systems v. Lewis (click to see our summary of Epic Systems), confirming what many practitioners already believed. Continue reading “California Court Distinguishes U.S. Supreme Court Ruling Reaffirms PAGA Claims Are Not Subject To Mandatory Arbitration/N.J. Amendment Invalidates Mandatory Arbitration”

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NLRB Advice Memoranda Provides Guidance on Employer Work Rules and Social Media

The National Labor Relations Board released a series of advice memoranda this week, two of which applied the new Boeing test to determine if a company rule or policy unlawfully restricts employees’ Section 7 right to engage in protected concerted conduct. The Boeing test overturned the NLRB’s 2004 decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). For a discussion of the Boeing decision, see our December 15, 2017 bulletin.

Continue reading “NLRB Advice Memoranda Provides Guidance on Employer Work Rules and Social Media”

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NLRB Restores Independent Contractor Test in SuperShuttle

On Friday, January 25, 2019, the National Labor Relations Board (“NLRB”) overruled an Obama-era decision focused on determining whether workers were independent contractors or employees and restored entrepreneurship as a key element in the NLRB’s analysis of the ten factors that comprise the test to determine independent contractor or employee status. SuperShuttle DFW, Inc., No. 16-RC-010963 (Jan. 25, 2019). Continue reading “NLRB Restores Independent Contractor Test in SuperShuttle”

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Watch for “No Match” Letters to make a Resurgence in 2019

Employers may recall the “no match” rule most recently from the George W. Bush administration’s efforts to strengthen the enforcement of U.S. immigration laws.  The Social Security Administration (SSA) sends “no match” letters to employers who submit W-2 forms with names and social security numbers for employees that do not match the SSA’s database information.  A “no match” can result when an employee provides a fake social security number to an employer.  The practice of sending “no match” letters became inactive during the Obama administration as the E-Verify system expanded and became the preferred method for confirming worker eligibility.

Continue reading “Watch for “No Match” Letters to make a Resurgence in 2019”

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National Labor Relations Board Releases Language of Proposed Rule to Reverse Obama-Era Joint-Employer Standard

Author: Adam Primm

The National Labor Relations Board (“NLRB”) released today a draft rule that would reverse the Obama Board’s 2015 Browning-Ferris Industries joint-employer decision, which greatly expanded the NLRB’s test for determining whether business constitute joint-employer. Continue reading “National Labor Relations Board Releases Language of Proposed Rule to Reverse Obama-Era Joint-Employer Standard”

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California Seeks to Protect Worker’s Right Not to Sign Arbitration or Nondisclosure Agreements

Authors: Rick Hepp and Eric Baisden

A California bill prompted by the #MeToo movement to prohibit employers from requiring workers to sign arbitration or nondisclosure agreements as a condition of employment is headed to the desk of Gov. Jerry Brown for final approval. Continue reading “California Seeks to Protect Worker’s Right Not to Sign Arbitration or Nondisclosure Agreements”