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WIRTW #546 (the “Arrivederci” edition)

Today is good bye … but only for two weeks. My kids' school gives them that much time off for Spring Break each year. So we are headed to Italy. Rome and Florence to be precise. I'll be back on April 1 (no foolin') with some thoughts about what I learned on my Spring Break. In the meantime, if you have any last minute tips on what to do, see, or eat in either of these cities, drop a note in the comments below. Here's what I read this week: Discrimination Two-Percent, Schmoopercent — via Kate Bi...
Tags: Spotify, Texas, Law, Congress, Chicago, Ada, Florence, Harvard Business Review, Joe, Citrix, Jonathan, EEOC, NLRA, Eric Meyer, FLSA, Jon Hyman


Thursday round-up

Briefly: At The Daily Caller, Kevin Daley notes that “Chief Justice John Roberts has made common cause with the Supreme Court’s liberal bloc as late, breaking with his conservative colleagues on cases relating to abortion, the death penalty and President Donald Trump’s revised rules for asylum seekers,” and that “[i]n isolation, it’s difficult to know what to make of the chief’s votes.” In an op-ed for Fox News, Kristen Waggoner hopes that the recent settlement between Colorado and Christian ba...
Tags: Supreme Court, Law, Colorado, Indiana, Atlantic, Fox News, Christian, Illinois, Donald Trump, Madison, Round-up, John Roberts, International Finance Corporation, Jam, NLRA, Marbury


What a lawful "civility" policy looks like under the NLRB's Boeing test

Consider and compare the following workplace civility policies: Commitment to My Co-Workers I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team. I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately. I will not complain about another team member and ask you not to as ...
Tags: Law, Boeing, Nlrb, NLRA, Jon Hyman, My Co, NLRB Office of General Counsel, My Co Workers


What a lawful "civiliity" policy looks like under the NLRB's Boeing test

Consider and compare the following workplace civility policies: Commitment to My Co-Workers I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team. I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately. I will not complain about another team member and ask you not to as ...
Tags: Law, Boeing, Nlrb, NLRA, Jon Hyman, My Co, NLRB Office of General Counsel, My Co Workers


As seen on Reddit: Salary discussion bans are a BIG legal no-no

AriesAviator posted the following question in the LegalAdvice subreddit: Boss just threatened to fire me and another co-worker because we were discussing a raise we both got- what should I do? We both got pulled into a group chat over the app our work uses, and the first message reads as follows; Hey I don't want to here about your raises with the other crew members we talked about this before, other places have strict rules either termination or reversal of the raise this is not okay, Don't ...
Tags: Law, Reddit, Nlrb, Don, Boeing Co, NLRA, Jon Hyman, Branden Tate


United States: New Independent Contractor Test Under The NLRA - Berman Fink Van Horn P.C.

Recently, the National Labor Relations Board ("NLRB") broadened the standard for who is considered an independent contractor.
Tags: News, United States, National Labor Relations Board NLRB, NLRA, Berman Fink Van Horn


United States: National Labor Relations Board Issues Decision Overruling Obama-Era Independent Contractor Test: What This Means For (Putative) Employers - Sheppard Mullin Richter & Hampton

In a business-friendly decision issued on January 25, 2019, the National Labor Relations Board ("NLRB" or "Board") revised its test for determining whether putative independent contractors are exempt from coverage under the National Labor Relations Act ("NLRA"). See SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019) ("SuperShuttle").
Tags: News, Obama, United States, Nlrb, Board, Hampton, National Labor Relations Board NLRB, NLRA, Mullin Richter, SuperShuttle DFW Inc


WIRTW #537 (the “Roma” edition)

We are contemplating spending Spring Break in Rome. For those who've been, what's you best tip for first-time visitors? Sights not to be missed? Things that are off the beaten path? Where to stay? Best pizza? Best gelato? Drop a note in the comments below and let me know your Rome tips. Here's what I read this week: Discrimination Google sued for allegedly covering up sexual misconduct allegations — via Engadget  Boys and Thrones and Sexual Harassment — via HR Examiner with John Sumser Liti...
Tags: Google, Law, Rome, Ada, Omega, ERC, McConnell, Troutman Sanders, NLRA, Eric Meyer, Kavanaugh, Spring Break, GrubHub, FLSA, Jon Hyman, Suzanne Lucas


In the mail: Supreme Court Haiku

#SCOTUS #haiku Collins v. Virginia (5/29/18) No vehicle searchIn curtilage of a homeWithout a warrant https://t.co/jNJZjcOZ0F — Supreme Court Haiku (@SupremeHaiku) May 29, 2018 #SCOTUS #haiku Epic Systems Corp. v. Lewis (5/21/18) NLRA won'tStop solo arbitrationIf parties agreedhttps://t.co/G6jq2VzVfv — Supreme Court Haiku (@SupremeHaiku) May 21, 2018 #SCOTUS #haiku Carpenter v. United States (6/22/2018) Cell-site records grabIs a Fourth Amendment SearchLikely need warranthttps://t....
Tags: Supreme Court, Law, Virginia, Uncategorized, United States, Humor, Collins, Lewis, Carpenter, NLRA, Epic Systems Corp, Supreme Court Haiku, jNJZjcOZ0F Supreme Court Haiku, G6jq2VzVfv Supreme Court Haiku, Jc92MkhjRX Supreme Court Haiku


From the archives: The Employer Bill of Rights

I recently came across an interesting blog, entitled, 10 Workplace Rights You Think You Have — But Still Don't. Written by plaintiff-side employment lawyer Donna Ballman, it suggests that employees have far fewer workplace protections than they might think, and rights like wrongful termination, free speech, and workplace privacy simply do not exist. That post got me thinking about a post I wrote 7 years ago — The Employer Bill of Rights. After more than 20 years representing employers in work...
Tags: Law, Ada, NLRA, Donna Ballman, OSHA, FMLA, FLSA, ADEA, Jon Hyman, USERRA, Control Operations The Right


United States: NLRB Limits Protections For Striking Workers In Consolidated Communications - Seyfarth Shaw LLP

Seyfarth Synopsis: Though the NLRA provides robust protections for striking employees, the Board's decision in Consolidated Communications demonstrates some of the limits of those protections
Tags: News, United States, Board, Seyfarth, NLRA, Consolidated Communications


Morning Docket: 09.27.18

* Is anything going on today? [BBC] * Anything at all? [USA Today] * Dan Snyder and Cadwalader settle their massive malpractice suit so Snyder can focus full time on his team's inevitably heartbreaking collapse. [Law360] * Speaking of Washington's football franchise, the heiress of its former owner is facing criminal charges for allegedly saying, "hurry up Jew" before beating a lawyer in the head until he bled. Lovely organization Washington's got there! [Fox News] * After months of bad pres...
Tags: Amazon, Technology, Supreme Court, Privacy, Law, California, Washington, America, Bbc, Pwc, Argentina, Courts, Fox News, Usa Today, David Mamet, Dan Snyder


WIRTW #521 (the “master of my domain” edition)

What's the top employee issue that makes HR folks queasy? Drugs? Sex? Pornography? According to Robin Schooling, the worst conversation to have with an employee is about sexual self-pleasuring at work. What's the most uncomfortable conversation you've ever had with an employee? Please share in the comments below. Here's what else I read this week: Discrimination How Unconscious Bias Almost Killed My Friend — via Evil HR Lady, Suzanne Lucas Sexual Harassment: R-E-S-P-E-C-T in Fire Departments ...
Tags: Minnesota, Law, Toronto, Connecticut, Ohio, Ada, Harvard Business Review, Nlrb, Joe, Robin, Robin Shea, EEOC, Troutman Sanders, NLRA, Eric Meyer, Ragan


United States: Fair Labor Standards Act Collective Action Provision Too Does Not Make Agreement To Mandatory Bilateral Arbitration Unenforceable - Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

When the Supreme Court ruled recently that the "concerted activities" provision of the NLRA did not make a contractual waiver of "class arbitration" unenforceable, it provided an extensive analysis
Tags: News, Supreme Court, NLRA, Popeo, Mintz Levin Cohn Ferris Glovsky


United States: The Epic Sequel: Federal Appeals Court Extends Class Waiver Victory To Wage Claims - Fisher Phillips LLP

On the heels of the Supreme Court's decision in Epic Systems Corporation v. Lewis, which held that the National Labor Relations Act (NLRA) does not bar class or collective action waivers
Tags: News, Supreme Court, United States, Lewis, NLRA, Federal Appeals Court, Fisher Phillips LLP, Epic Systems Corporation


United States: D.C. Circuit Rules That Off-Duty Employees Had A Right To Picket On Hospital Property - Seyfarth Shaw LLP

Seyfarth Synopsis: U.S. Court of Appeals for the D.C. Circuit rules that the NLRB properly found that a hospital violated the NLRA by threatening employees with discipline and arrest for peacefully
Tags: News, United States, Nlrb, U S Court of Appeals for the D C Circuit, NLRA, Picket On Hospital Property Seyfarth Shaw LLP


Judge Kavanaugh on work law

Charlotte Garden is an associate professor at Seattle University School of Law. This post analyzes Judge Brett Kavanaugh’s most significant work-law opinions. Although several are already receiving attention and analysis – especially his dissent in a case that arose after a killer whale killed a trainer – Kavanaugh has drafted dozens of other opinions in labor and employment-discrimination cases. Overall, these opinions reflect that Kavanaugh tends to interpret narrowly the limits that work law ...
Tags: Verizon, Florida, Featured, Supreme Court, Law, Congress, Navy, Office, NFL, Fbi, United States, Paris, Social Security, Seaworld, Island, State Department


Can you lawfully fire an employee who writes "whore board" to protest a new overtime rule?

In Constellium Rolled Products Ravenswood, LLC, the NLRB held that an employer unlawfully fired an employee who wrote "whore board" on an overtime sign-up sheet. How is this unlawful? Let's explore. Following unsuccessful negotiations for a new union contract, Constellium unilaterally implemented a new overtime policy that required employees to sign up for overtime on a sheet posted on a bulletin board outside the lunchroom. Employees were not happy about the new policy. Those who opposed it ...
Tags: Law, Obama, Williams, Nlrb, NLRA, Jon Hyman, Ravenswood LLC, MARK ADRIANE


Judge Kavanaugh and freedom of expression

Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School. As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions b...
Tags: Google, Verizon, Facebook, Featured, Fcc, Supreme Court, Law, Congress, White House, Department Of Defense, Fox, United States, Comcast, New York Times, Federal Communications Commission, States


United States: Employee Rights Act Introduced. (Beltway Buzz, August 3, 2018) - Ogletree, Deakins, Nash, Smoak & Stewart

Late last week, Rep. Phil Roe (R-TN) introduced the Employee Rights Act of 2018 (H.R. 6544). The bill would enact two changes to the NLRA and one change to the Labor-Management Reporting and Disclosure Act in order to promote the principle of voluntary unionism that undergirds federal labor law.
Tags: News, Stewart, NLRA, Phil Roe, Ogletree Deakins Nash Smoak


Constitutional Political Economy When the Court is to the Right of the Country

By Joseph Fishkin & William E. ForbathMost Americans, even well-informed Americans, understand the fight over a new Supreme Court justice largely in terms of certain high-salience issues in constitutional politics such as abortion, affirmative action, the death penalty, or perhaps the religious rights of a conservative Christian to refuse to serve a gay couple. We seem a great distance, in other words, from 1936, when President Roosevelt ran for re-election against the “constitutional-economic ...
Tags: Supreme Court, Court, Alabama, United States, Citizens United, States, Republican Party, Illinois, Paramount Pictures, Chamber of Commerce, Kennedy, Jones, South, Branding, Southwest, Trump


Symposium: Free speech for public employees restored — Justice Alito plays the long game.

Matthew Forys is the chief of staff at Landmark Legal Foundation, which filed an amicus brief in support of Mark Janus in Janus v. AFSCME. The Supreme Court upheld the free speech rights of state and local public-sector workers in Janus v. American Federation of State, County, and Municipal Employees and overruled an anomaly in its First Amendment jurisprudence: 1977’s Abood v. Detroit Board of Education. At issue in Janus was whether state government workers who don’t want to join the union rep...
Tags: New York, Maryland, Supreme Court, Law, Unions, Congress, Washington, New Jersey, Knox, Michigan, Quinn, SEIU, Illinois, Hudson, HARRIS, Abood


WIRTW #510 (the “communication breakdown” edition)

“Best Band I’ve ever heard!” “You kids Rocked best band I’ve seen in long time. I would pay to see Fake ID again WOW” “Could of listened to u all day. VERY IMPRESSED!” “I was blown away by your talent! Very impressive!” These are just a few of the comments made by folks who saw Fake ID play a killer hour-long set over the Memorial Day weekend at Ohio Bike Week. (I agree with all of the above comments, but I’m also a bit biased.) If you are looking for something to do next Saturday evening, head ...
Tags: Law, NFL, Connecticut, Ohio, Cleveland, Harvard Business Review, Nlrb, EEOC, Social Media Examiner, NLRA, Eric Meyer, Kris Dunn, Dan Schwartz, Crocker Park, Jon Hyman, Suzanne Lucas


NLRB clarifies its new employee handbook rules

Late last year, in Boeing Co., the NLRB rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act. The Board scrapped Lutheran Heritage‘s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a te...
Tags: Law, Obama, Boeing, Nlrb, Board, Boeing Co, NLRA, Jon Hyman, Pixabay, Office of General Counsel, DariuszSankowski, Lutheran Heritage


Symposium: Majority gives short shrift to worker rights

Katherine V.W. Stone is Arjay and Frances Fearing Miller Distinguished Professor of Law at UCLA School of Law. She has written frequently about arbitration law, most recently in The Bold Ambition of Justice Scalia’s Arbitration Jurisprudence: Keeping Workers and Consumers Out of Court. She and other labor law professors joined an in support of the employees in Epic Systems v. Lewis. On May 21, in Epic Systems v. Lewis, the Supreme Court, by a 5-4-majority, held that an employer may lawfully re...
Tags: Featured, Supreme Court, Law, Congress, Mitsubishi, Ruth Bader Ginsburg, Faa, National Labor Relations Board, Nlrb, Antonin Scalia, Lewis, Horton, Scalia, Ginsburg, U S Court of Appeals, Norris


Symposium: Justice Ginsburg’s anachronistic dissent in Epic Systems runs afoul of the Rules Enabling Act

Richard Samp is chief counsel of the Washington Legal Foundation, which filed an in support of the employers in Epic Systems Corp. v. Lewis. The majority and dissenting opinions in Epic Systems Corp. v. Lewis adopted starkly competing visions of two federal statutes, both nearly a century old. The majority held that the Federal Arbitration Act’s policy favoring enforcement of arbitration agreements trumps Section 7 of the National Labor Relations Act, which confers on employees the right to en...
Tags: Featured, Supreme Court, Law, Congress, Ruth Bader Ginsburg, Faa, Nlrb, CBA, Lewis, Ginsburg, NLRA, William Douglas, American Express Co, Richard Samp, FLSA, Epic Systems


Symposium: Good news for employers and workers, bad news for lawyers

Archis Parasharami is a partner and Dan Jones is an associate at Mayer Brown. Parasharami contributed to an for the Chamber of Commerce in support of the employers in Epic Systems Corp. v. Lewis. One year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the National Labor Relations Board advanced a novel interpretation of Section 7 of the National Labor Relations Act, which gives employees the right to organize, bargain collectively and “engage in other concerted activiti...
Tags: Featured, Supreme Court, Law, Congress, California, Epic, Ruth Bader Ginsburg, Faa, Dan Jones, Chamber of Commerce, Nlrb, The Supreme Court, Ginsburg, NLRA, Anthony Kennedy, American Arbitration Association


Symposium: The Federal Arbitration Act and the National Labor Relations Act are two ships that pass in the night

Ben Robbins is senior staff attorney for the New England Legal Foundation.  He filed an for NELF in support of the employers in the consolidated cases in Epic Systems Corp. v. Lewis. Although the Supreme Court’s decision today in Epic Systems Corp. v. Lewis was a close one (5-4), the result was not surprising, in light of the court’s recent decisions establishing the primacy of the Federal Arbitration Act over other, potentially conflicting federal statutes.  At issue was whether the FAA’s man...
Tags: Featured, Supreme Court, Law, Congress, Faa, Nlrb, Lewis, NLRA, Eastex, Epic Systems Corp, Ben Robbins, NRLA, New England Legal Foundation, NELF, Lewis Although the Supreme Court, Eastex Inc


Epic Systems and the Atomization of Employment Disputes

Millions of American workers are parties to arbitration agreements that require them to bring claims against their employers in individualized arbitration proceedings (rather than as part of a class or collective action, as authorized by some federal and state laws regulating the workplace). In Epic Systems v. Lewis, a 5:4 majority of the Supreme Court held today that these agreements must be enforced even though the federal National Labor Relations Act declares it an unfair labor practice for a...
Tags: Supreme Court, Finance, Faa, Nlrb, Board, Thomas, Lewis, NLRA, Supreme Court Cases, Gorsuch, Epic Systems, Mark Weidemaier, Credit Slips, Consumer Arbitration, Justices Roberts Kennedy Alito


A “view” from the courtroom: Strength in numbers (Corrected)

After the court put a major dent in its pending caseload last week, with five relatively significant decisions, including the much-discussed ruling favorable to sports betting in Murphy v. NCAA, the odds on this week’s lone opinion day is that we’ll get fewer decisions. We had to jump on a plane right after decisions last Monday to get to a conference in Los Angeles, where the weather was sunny and in the 70s. Did it rain here last week? The court takes the bench at 10 a.m., with Justices Claren...
Tags: Featured, Law, Congress, Washington, Los Angeles, United States, Davis, Ncaa, Ruth Bader Ginsburg, Faa, University Of California, National Labor Relations Board, Thomas, Sonia Sotomayor, Lewis, Morris