Labor

Expert Analysis

• 2nd Circ. Ruling Signals Decisive Shift To NLRB Contract Test

  

  In its recent International Brotherhood of Electrical Workers v. National Labor Relations Board decision, the Second Circuit explicitly approved an NLRB test that gives employers flexibility to address unforeseen circumstances not addressed in union contracts, and signified the end of a decades-old test requiring a clear and unmistakable waiver of bargaining rights, says Frederick Braid at Holland & Knight.

• What Employers Should Know About NLRB Top Cop Priorities

  

  A recent memo released by the National Labor Relations Board's new general counsel signals changes in enforcement priorities, and both unionized and nonunionized employers should note potential shifts in precedent for contract work, handbooks, electronic media and more, say Robert Lian and James Crowley at Akin Gump.

• Employer Lessons From 7th Circ. Ruling On Labor Violations

  

  The Seventh Circuit’s recent affirmation of the National Labor Relations Board’s finding against Mondelez Global contains lessons for employers on unlawful discharges, unilateral changes and information requests — which also apply to mandatory vaccination and other pandemic-related policies, say Andrew Goldberg and Christina Wernick at Laner Muchin.

• How High Court Takings Ruling Compares With Prior Analysis

  

  In setting new precedent on regulatory takings with its recent decision in Cedar Point v. Hassid, the U.S. Supreme Court did not overrule the test established in its 1978 Penn Central v. New York City opinion, but it is possible that Penn Central would be decided differently today, says John Walk at Hirschler.

• Under Biden, Nonunion Employers Can't Ignore Labor Law

  

  The National Labor Relations Board under President Joe Biden will likely expand employee protections in the nonunion workplace, so employers must consider potential liabilities, especially regarding investigations, handbooks and discipline for worker misconduct, says Daniel Johns at Cozen O'Connor.

• NLRB Saves Scabby But Must Go Further On Free Speech

  

  The National Labor Relations Board recently reaffirmed that unions have the right to display banners and the rat-shaped balloon Scabby on public property near a work site shared by multiple employers, but the absence of full First Amendment protection for peaceful labor picketing has become increasingly untenable in view of U.S. Supreme Court decisions, says Catherine Fisk at the University of California.

• How Purchasers, Debtors Can Navigate CBAs In Bankruptcy

  

  As commercial bankruptcy filings rise, debtor and purchasing employers have several available tools to modify or eliminate preexisting collective bargaining agreements, with nuanced considerations established by the Bankruptcy Code and case law, says Stephania Sanon at McDermott.

• Lessons On Protected Conduct From Starbucks NLRB Ruling

  

  A recent National Labor Relations Board ruling against Starbucks, finding that the company violated the National Labor Relations Act, helps to illustrate examples of protected conduct and highlights some best practices for employers considering adverse action against employees who have engaged in union activities, says Geoff Gilbert at Constangy Brooks.

• DC Circ. Labor Ruling Is A Win For Employer Free Speech

  

  The D.C. Circuit’s recent decision overturning the National Labor Relations Board's finding that a Trinity Services manager's misstatements blaming the union for paid leave issues amounted to an unfair labor practice preserves workplace free speech, but reminds employers to uphold certain best practices when communicating with workers, say Scott Nelson and Lukas Moffett at Hunton.

• NLRB Can Bypass Senate Gridlock To Impose Labor Reforms

  

  The Protect the Right to Organize Act, which would dramatically expand federal labor law and is endorsed by the Biden administration, is likely to fail in the Senate, but there are many elements of the pro-union bill that may be implemented by the National Labor Relations Board without legislation, say attorneys at Jackson Lewis.

• Justices' Cedar Point Ruling May Inspire More Takings Claims

  

  The U.S. Supreme Court's decision in Cedar Point Nursery v. Hassid, finding that a California law granting union organizers access to private property was a government taking, provides landowners with a new weapon to fight a broad range of government regulations, says Ryan Sugden at Stinson.

• What High Court Union Access Ruling Means For Employers

  

  In Cedar Point Nursery v. Hassid, the U.S. Supreme Court recently overturned a California law that required growers to grant union organizers access to their property, offering a new avenue of attack against such union invasions of an employer’s property, including those protected by other California statutes, say Keahn Morris and Mark Ross at Sheppard Mullin.

• How Proposed Ill. Amendment Would Change Union Rights

  

  This fall, Illinois voters will decide on a proposed collective bargaining amendment to the state constitution, which if enacted would significantly expand both public and private sector bargaining rights, raising questions about federal preemption, union security and more, say Jennifer Jones and Tanja Thompson at Littler.