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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


BREAKING: In “Epic” Decision, Supreme Court Approves of Employer Use of Class Action Waivers in Arbitration Agreements

In an important 5-4 decision, the U.S. Supreme Court this morning held, for the first time, that class or collective action waivers, particularly in wage/hour cases, and contained in arbitration agreements between employers and employees are valid and enforceable. Because wage and hour class and collective actions are quite costly for employers to defend against, this decision should cause employers in Connecticut (and nationwide) to re-evaluate their employment relationships with employees and ...
Tags: Supreme Court, Law, Congress, Court, Connecticut, Faa, National Labor Relations Board, Class Action, Agreement, Class Actions, Board, Arbitration, Lewis, U S Supreme Court, Ginsburg, Lochner


Opinion analysis: Employers prevail in arbitration case (Updated)

[NOTE: This post was updated with additional analysis at 3:30 p.m.] In 1925, Congress passed the Federal Arbitration Act, which (among other things) provides that an agreement to arbitrate a dispute “shall be valid, irrevocable, and enforceable.” Ten years later, Congress enacted the National Labor Relations Act, which makes clear that employees have the right to work together for “mutual aid and protection.” Today the Supreme Court ruled, by a vote of 5-4, that employers can include a clause in...
Tags: Featured, Supreme Court, Law, Congress, Ruth Bader Ginsburg, Faa, National Labor Relations Board, Nlrb, Morris, John Roberts, Howe, Ginsburg, Elena Kagan, NLRA, Gorsuch, Epic Systems


WIRTW #504 (the “once bitten, twice shy” edition)

Never in my life did I think that I’d ever attend a biker rally. Yet, four days from tomorrow, I’ll be in Sandusky, at Ohio Bike Week. Why? I’ll be watching Norah and her bandmates warming up the crowd for 80’s hair band Great White. If you’re attending, please say hi. I’ll be the one without the motorcycle. Here’s what I read this week. Discrimination If You’re Sued, Your Sexual Harassment Report Could Become Public — via TLNT Labor Department tells senators it’s too ‘complex’ to collect s...
Tags: Law, California, Connecticut, Michigan, Hostile Work Environment, Social Media Examiner, NLRA, Eric Meyer, Sandusky, Dan Schwartz, Krebs, FMLA, Jon Hyman, Norah, Suzanne Lucas, Mike Haberman


What the hell is going on at the NLRB with joint employment?

Photo by Cameron Kirby on Unsplash If you are a small business owner, pay attention. Today’s update on the issue of joint employment will be one of the most important things you read this year. Joint employment has been on a bit of a roller coaster ride at the NLRB over the past few months. Today, I’m going to sort it all out for you, and try to explain where we might be headed next. What is Joint Employment? Joint employment is the sharing of control and supervision of an empl...
Tags: Law, Senate, America, House, Nlrb, Calif, Emanuel, DOL, NLRA, Browning Ferris, OSHA, Browning Ferris Industries, FLSA, David Berry, D C Circuit Court of Appeals, Jon Hyman


Tuesday round-up

Court-watchers continue to comment on one of the biggest cases of the February sitting — Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. At the Daily Beast, Barrett Holmes Pitner maintains that “attacks on public-employee unions represent an extension of the numerous attacks upon minoriti...
Tags: Florida, Supreme Court, Law, Virginia, America, Los Angeles, Atlantic, Pennsylvania, United States, Graham, Louisiana, Illinois, The Washington Post, Round-up, Lewis, Currier


United States: Are Graduate-Students Assistants Employees Under The NLRA? The Answer Of The Obama Board Will Not Be The Final Word - Seyfarth Shaw LLP

A 2016 decision of the National Labor Relations Board finding that the graduate students at Columbia University were employees under the NLRA has been teed up for review by the Court of Appeals.
Tags: News, United States, Columbia University, National Labor Relations Board, NLRA, Obama Board, Final Word Seyfarth Shaw LLP


United States: NLRB Strikes Down Restrictive Standard For Evaluating The Legality Of Employee Handbook Policies And Workplace Rules - Reinhart Boerner Van Deuren S.C.

In Boeing Company, the Board overruled the "reasonably construe" standard and articulated a new balancing test for evaluating workplace rules that may potentially interfere with the exercise of NLRA rights.
Tags: News, United States, Nlrb, NLRA, Reinhart Boerner Van Deuren, Boeing Company the Board