Labor

Expert Analysis

• Employer Discipline Lessons In DC Circ. Vulgar Protest Ruling

  

  The D.C. Circuit's recent ruling in Constellium Rolled Products v. NLRB — that a worker was improperly fired for using profanity while protesting company policy — highlights confusion surrounding worker protections for concerted activity and the high bar for employers to prove discipline is unrelated to such activity, say John Hargrove and Anne Yuengert at Bradley Arant.

• NLRB Reversal On Union Apparel Is A Warning For Employers

  

  The National Labor Relations Board's recent reversal of Trump-era case law in its Tesla ruling significantly limits when employers may restrict union insignia on clothing in the workplace and provides multiple cautionary takeaways for employers, say attorneys at Shipman & Goodwin.

• Proposed NLRB Rule Would Vastly Expand Joint Employment

  

  The National Labor Relations Board’s recently proposed rule for determining when joint employment exists would replace a 2020 standard with expansive new definitions, including the problematic addition of workplace health and safety as an essential term and condition, says Todd Lebowitz at BakerHostetler.

• Key Takeaways From Calif.'s Sweeping Fast-Food Wage Law

  

  California Gov. Gavin Newsom recently signed a controversial wage bill that will have a major impact on fast-food employers and employees, will likely shape how the state regulates other industries in the future, and represents a radical step toward sectoral bargaining, says Pooja Nair at Ervin Cohen.

• Prepare For NLRB Collaboration With Antitrust Agencies

  

  The National Labor Relations Board's recent agreements with the Federal Trade Commission and the U.S. Department of Justice may herald increased interagency engagement on noncompete and no-poach issues, so companies that face scrutiny from one agency may well quickly be in the crosshairs of another, say attorneys at BakerHostetler.

• Watson Discipline Case Shows NFL's Power In Labor Disputes

  

  While the six-game suspension a disciplinary officer recently ordered against Cleveland Browns quarterback Deshaun Watson aligns with labor law standards, the NFL has authority to increase the punishment with little to no recourse for Watson or the NFL Players Association — thanks to the 2016 “Deflategate” case, says Michael Elkins at MLE Law.

• Why Gig Platforms Should Be On Alert

  

  The Federal Trade Commission and state attorneys general have set their sights on the gig economy and practices they view as deceptive and unfair, which will open gig platforms to more scrutiny — and past cases against gig-economy giants including Uber and Instacart are cautionary tales to keep in mind, say attorneys at Venable.

• What New Captive Audience Law Means For Conn. Employers

  

  Given a new Connecticut law that allows employees to opt out of captive audience meetings where employers share religious or political opinions, companies will need to address the liability risks posed by this substantial expansion of employee free speech rights, say attorneys at Shipman & Goodwin.

• More Employment Regs May See 'Major Questions' Challenges

  

  The U.S. Supreme Court's recent use of the major questions doctrine to strike down regulation has already been cited in lower court cases challenging U.S. Department of Labor authority to implement wage and hour changes, and could provide a potent tool to litigants seeking to restrain federal workplace and labor regulations, say Jeffrey Brecher and Courtney Malveaux at Jackson Lewis.

• Wage Theft Bill Would Increase Risk, Severity Of FLSA Claims

  

  A recently introduced bill would amend the Fair Labor Standards Act in extreme ways that go well beyond the commonsense idea that people should be paid the wages they have earned, thereby sharply increasing the threat of claims against employers, with implications for arbitration, collective bargaining and more, say Christopher Pardo and Beth Sherwood at Hunton.

• 4 Labor Relations Lessons From Soccer League CBA

  

  As a resurgent labor movement prompts employers to consider how to respond to unionization efforts, the first collective bargaining agreement between the National Women's Soccer League and the union representing its players provides important insights, says Chris Deubert at Constangy Brooks.

• 3rd Circ. Ruling Shows Limits Of Regulating Employer Speech

  

  It is clear that the current National Labor Relations Board wants to regulate employer speech more strictly in the context of union organizing campaigns, but the courts may not be ready to allow that expansion, as demonstrated by the Third Circuit's recent First Amendment decision in FDRLST Media v. NLRB, says Daniel Johns at Cozen O'Connor.

• Memo Shows NLRB's Pro-Union Property Access Agenda

  

  A recent memo from the National Labor Relations Board's Division of Advice recommended overturning two 2019 decisions that limited union access to public worksites, which could give unions an important advantage in the current wave of retail and health care organizing, say Alek Felstiner and Natalie Grieco at Levy Ratner.