Wyatt Employment Law Report


With New NLRB Proposed Rule, Browning-Ferris’s Days May Be Numbered

By Thomas E. Travis

The National Labor Relations Board (“NLRB”) recently proposed a new rule to scale back a controversial Board decision from 2015 regarding the appropriate test for whether a franchisor and franchisees are “joint employers” under the National Labor Relations Act. This would directly roll back the NLRB decision in Browning-Ferris Industries of California, where the Board extended joint employment to circumstances where a company has only “indirect” control over another company’s workers, overturning a prior ruling that required “direct and immediate control.”

The new proposed rule would establish that two entities become joint employers “only if the two employers share or codetermine the employee’s essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” This is, of course, much closer to the original “direct and immediate control” standard, with even more ascertainable guidelines to assist the Board in reaching its determination. And contra Browning-Ferris, this standard is much more difficult for challengers to meet in making claims for joint employment.

Should the proposed rule take effect, commenters are somewhat divided over the impact of Browning-Ferris on litigation. Some observers note that the standard was infrequently invoked and seemed to not impact labor litigation nearly as much as its detractors contend. On the other hand, some critics rebut that the impact is felt not just in litigation, but in business planning and economic development: the broad standard invoked in Browning-Ferris required entities to closely evaluate every workplace scenario in attempt to avoid the vague strictures of the NLRB’s decision, and the prior rule seems to disincentivize franchising and other cost-saving business relationships.

Employers will most likely welcome the proposed change. If anything, the proposed change removes the latent ambiguities from Browning-Ferris, and replaces it with a clear standard to ease future business planning going forward.


Employers Have Opportunity to Comment on NLRB’s Proposed Joint Employer Rule

By Sharon Gold

The National Labor Relations Board (“NLRB”) recently proposed a rule establishing the standard for determining joint employer status under the National Labor Relations Act.  Employers have until November 13, 2018 to comment about the proposed rule.  The proposed rule, commentary and instructions on commenting are available here.

There have been several changes to the definition over the past few years, which has caused uncertainty for employers.  The proposed rule states that employers are joint employers “only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.”  Proposed Rule Part 103.40.  “A putative joint employer must possess and Continue reading


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NLRB establishes new policy governing employee handbooks and workplace policies

By Mitzi Wyrick

In Boeing Co., 365 NLRB No. 154, the National Labor Relations Board (“NLRB”) overturned the standard established in Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004) for weighing the legality of employee handbook rules and workplace policies.  In Lutheran Heritage Village-Livonia, the NLRB created confusion for employers when it ruled that employers violated the National Labor Relations Act (“NLRA”) by maintaining workplace rules that did not explicitly prohibit protected activities, were not adopted in response to such activities and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of Section 7 rights under the NLRA.

Under Lutheran Heritage, employers were found to have violated the NLRA for having seemingly innocuous policies prohibiting “loud, abusive or foul language,” rules subjecting employees to discipline for an “inability or unwillingness to work harmoniously with other employees,” and rules prohibiting “negative energy or attitudes.”  Confusingly, under Lutheran Heritage, some rules Continue reading


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NLRB Overrules Specialty Healthcare and Eliminates Overwhelming Community of Interest Standard

By Mitzi Wyrick

In PCC Structurals, Inc., 365 NLRB No. 160, the National Labor Relations Board (“NLRB”) clarified the correct standard for determining whether a proposed bargaining unit constitutes an appropriate unit for bargaining when the employer contends that the smallest appropriate unit must include additional employees.  The NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 934 (2011) (Specialty Healthcare) and reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases.

Under Specialty Healthcare, if a union petitioned for an election among a particular group of employees, those employees shared a community of interest among themselves and the employer took the position that the smallest appropriate unit had to include employees excluded from the proposed unit, the NLRB would not Continue reading


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NLRB Reverts to Prior Standard for Implementing Unilateral Changes

By Mitzi Wyrick

In Raytheon Network Centric Systems, 365 NLRB No. 161, the National Labor Relations Board (“NLRB”) issued a ruling affecting bargaining obligations that are required before implementing a unilateral “change” in employment matters. Until 2016, when the NLRB decided E.I. du Pont de Nemours, 364 NLRB No. 113, the NLRB had found that an employer was not obligated to bargain before making unilateral changes when it followed a well-established past practice.

In the 2016 DuPont decision, the NLRB held that even if an employer acted consistently with past practice, if a collective bargaining agreement  (“CBA”) had expired and was no longer in effect, bargaining would always be required.  Specifically, the NLRB had required the employer to Continue reading


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Emanuel Fills Last NLRB Seat

By Edwin S. Hopson

On September 26, 2017, William J. Emanuel, a Republican,  was sworn in as a Member of the National Labor Relations Board.  Emanuel’s term will end August 27, 2021. The Senate had confirmed his nomination by a vote of 49-47 after Democrats filibustered his appointment.

Prior to his appointment, Emanuel was a shareholder with Littler Mendelson, P.C., a law firm representing management in labor and employment matters.  He had also practiced labor law with several other firms.

With this new Member, the NLRB is once again at full strength – three Republicans and two Democrats.


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Supreme Court Considers Validity of Employment Contracts Prohibiting Class or Collective Action

By Douglas L. McSwain

On October 2, 2017, the Supreme Court of the United States heard three combined cases raising an important legal question that likely will affect innumerable employment contracts used in this country.  The Court heard Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris and National Labor Relations Board (NLRB) v. Murphy Oil (USA).  The Court’s ruling in these three cases will determine the validity of arbitration clauses that waive or prohibit the employee from pursuing collective, class or joint actions in court or in arbitration proceedings.

The lower courts have differed on this question, and the oral argument before the Supreme Court indicates the Justices are likely to split in what could turn out to be a closely decided ruling, perhaps with a thin majority of Justices (i.e., potentially a 5-4 decision).  No one knows for sure how the case will be finally decided by the Supreme Court, and predictions about how the Justices will rule, at this juncture, are premature at best.  The questioning that occurred during oral argument seems to suggest Continue reading