Amex Employment Arbitration Policy held Unlawful by NLRB

Amex Card Services Company ("Amex") operates a call center in Phoenix, AZ.  Amex required all new hires to sign an acknowledgement form acknowledging receipt and understanding of its Arbitration Policy as a condition of employment. The policy mandated final and binding arbitration to resolve all employment-related disputes. The policy also mandated that all claims subject to arbitration be submitted on an individual basis.  More ›

Facebook “Like” Protected Speech Under the NLRA

We all have them. Friends and family who overshare on Facebook. Their food choices (complete with pictures), exercise routine, and relationship drama, all solidified in the form of a status update. Annoying maybe, but mostly harmless, right? 

But what about status updates about work? Particularly those that criticize a company, supervisor, or work environment? Can your friend’s employer terminate or take recourse against him? Or does social media fall into a category of protected speech the employer cannot touch? More ›

Click to Agree? NLRB will Accept Electronic Signatures in Union Organizing Efforts

When was the last time you scrolled through an online statement of Terms and Conditions, just wanting to get to the bottom so that you can click “Agree” and move on with your day? By doing so, you legally committed to something, and you may not even know what it is. Would you believe that, as of September 1, a union could use a similar electronic form to gather employee signatures and trigger a representation election? Well, believe it. More ›

Joint Employer Standard Expanded: NLRB Overturns 30 Years of Precedent

In a dramatic departure from over 30 years of precedent, the National Labor Relations Board has modified the standard by which it determines whether two entities are "joint employers" under the National Labor Relations Act (NLRA). The 3-2 ruling in Browning-Ferris Industries of California, published on August 27, 2015, has serious implications for companies that utilize staffing agencies and temporary employees, and for the staffing agencies themselves. The ruling greatly increases the ability of workers to bargain with both their employer and the company that hires their employer and to hold both companies responsible for various wrongs.  More ›

Trend Alert: NLRB Holds Employee Acting Alone Engages in Concerted Activity

The NLRB, and courts interpreting the National Labor Relations Act ("NLRA"), consistently have held that to engage in concerted activity protected by Section 7, two or more employees must take action for their mutual aid or protection regarding terms and conditions of employment. Key takeaways: "two or more" and "mutual." But, as the title of this article suggests, even a lone wolf may fall within this definition in certain circumstances.       More ›

Sixth Circuit: Despite Misconduct, Terminating Complaining Employee Still a Problem under Section Seven

Ask any school teacher and they will tell you, the key to maintaining an orderly classroom is identifying the instigator. The "instigator" is the young boy or girl (let’s be honest, usually boy) who does or says something to disrupt productivity and get everyone off-task. I often tell my clients that managing a workforce is similar to managing a group of adolescents. You must establish and enforce rules, know everyone's strengths and weaknesses, recognize personal conflicts, and — most importantly — identify the instigator. In a recent federal case, however, one employer learned the pitfalls of playing teacher: in the workplace, the instigator may be the one person that you don’t want to single out. More ›

Aching Joints: Franchisor Avoids Liability for Franchisee's Labor Disputes

Any time an employer is involved in a franchise relationship, there are bound to be unique issues when legal disputes arise, particularly in the employment context. It is no longer surprising to see the names of any and all related entities captioned as the defendant in an employment lawsuit, and this includes franchisors who may have absolutely no relationship with or control over the employer's employees. More ›

Déjà vu all over Again: NLRB Rejects Employer's Handbook Policies

You may have noticed that the NLRB has been coming down pretty hard on employment policies, practices and handbooks lately. They've added yet another decision to the arsenal this past month.  More ›

Even when NLRB Orders it, Employers have Little Guidance on Work Authorization Procedures

Quick, employers: you make a job offer to a promising applicant, only to find out that his work authorization papers are less than perfect. He has a social security card and number but something seems… off. (“Is that a letter in the social security number? Is that even possible?”) What do you do? Withdraw the offer? Proceed with the hire and pretend you didn’t see any problem?

The answer is not a simple one and, in the end, the law leaves employers to use their own reasonable judgment. But what is “reasonable,” anyways? Guidance from the government on that question is scant. Add to this the fact that a wrong decision in either direction (i.e., denying employment to an authorized worker or granting employment to an unauthorized one) can lead to all sorts of troubles, and you’ve got a headache at best and, at worst, a potential lawsuit. More ›

Does your Handbook hold up? The NLRB Offers Guidance for Employment Policies

Having an employee handbook is an effective way to communicate the rules of the workplace and the employer's expectations of its employees. Employers not only use handbooks in day-to-day personnel management activities, but also for discipline and termination, and as a defense in litigated disputes. It is, therefore, important for those handbooks to be compliant with applicable state and federal authorities.

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