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By Katherine Fechte, T. Christopher Bailey on September 23, 2015 at 11:14 AM

The National Labor Relations Board has long held employers cannot stifle employee communications about the conditions of their employment in general handbook confidentiality clauses, but on Aug. 27, the NLRB took that prohibition one step further.

In a 2-1 decision, the board ruled The Boeing Co.’s confidentiality restriction for employees under HR investigations violated the National Labor Relations Act. (Boeing Co., 2015 BL 278958, 362 N.L.R.B. No. 195, 8/27/15.)

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By Beata Krakus, T. Christopher Bailey on August 31, 2015 at 1:16 PM

Reversing course from more than 30 years of precedent, the National Labor Relations Board significantly expanded its standard for determining when two entities constitute a single joint employer over a unit of employees. In so doing, the NLRB creates questions about a number of entity relationships such as parent corporation/subsidiary, contractor/subcontractor and franchisor/franchisee relationships.

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By Amy Blaisdell, Lauren Daming, T. Christopher Bailey on March 26, 2015 at 10:43 AM

5388576411_700edd78b2By a 6-3 majority, the Supreme Court created a potentially new standard by which employers’ accommodations given or denied to pregnant women will be judged under the federal Pregnancy Discrimination Act (“PDA”).

In Young v. UPS, the plaintiff, Peggy Young, was deemed unable to work her part-time driver position once her physician placed her on a 20-pound lifting restriction. Young was placed on an unpaid leave, and returned to work after the birth of her child; however, Young subsequently filed a lawsuit against UPS alleging the company violated the PDA in refusing to accommodate her pregnancy-related lifting restriction and not assigning her to a light duty position. 

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By Beata Krakus, T. Christopher Bailey on July 30, 2014 at 8:54 AM

franchiseIn a decision that could have far-reaching legal implications for franchisors, on July 29, 2014, the General Counsel of the National Labor Relations Board (“NLRB”) ruled that McDonald’s was a joint employer of its franchisees’ employees. This decision stems from allegations that McDonald’s and its franchisees violated employees’ rights following protests pertaining to wages and working conditions.

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By T. Christopher Bailey on May 20, 2014 at 1:34 PM

EmailThreatening to overturn current Board precedent, the National Labor Relations Board (“Board” or “NLRB”) has invited interested individuals and organizations to submit briefs addressing whether employees should have the right to use employer-provided e-mail and electronic communications systems for union organizing and any other activity protected by the National Labor Relations Act (“NLRA”). A successful effort by the Board will require both union and non-union employers to review their communications policies to ensure compliance with the NLRA.

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By T. Christopher Bailey on April 10, 2014 at 12:55 PM

College style football on field with a pile of moneyIn a decision with the potential to change the landscape of major college sports, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) ruled that scholarship football players at Northwestern University are employees of the university and, therefore, entitled to hold an election to decide whether or not they wish to be represented by a union. Northwestern University immediately stated its intent to appeal the ALJ’s decision, and this matter is likely to end up working its way through the federal courts, and possibly the US Supreme Court.

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By T. Christopher Bailey on March 13, 2014 at 3:15 PM

LikeFacebook-iStock_000026017919SmallFacebook, Twitter, Instagram - what better way to announce an unexpected European vacation to your friends? That is, unless the funds used for the trip are the proceeds of a settlement agreement containing a confidentiality provision. In that case, according to a Florida court, social media is definitely not your friend (Gulliver School, Inc. v. Snay, 2014 51911, Fl. Dist. Ct. App., 2/26/14).

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By T. Christopher Bailey on September 4, 2013 at 9:14 AM

NonCompeteAgreements“Non-compete agreements aren’t really enforceable, are they?” This is a question I’ve been asked many times, usually by someone who already signed an agreement they didn’t fully understand. Non-compete agreements, also commonly referred to as restrictive covenants, are a confusing area of the law. Let’s clear up a few of the common misconceptions.

All non-compete agreements are created equal. Fiction. Although commonly lumped into the single term “non-compete agreement,” restrictive covenants cover a variety of topics, such as non-disclosure agreements, customer non-solicitation agreements and employee non-solicitation agreements. It is common for a single agreement to include many, if not all, of these restrictions.

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By T. Christopher Bailey on May 22, 2013 at 5:37 PM

Employee Rights poster with unconstitutional across it.Intra-Session NLRB Recess Appointments Invalid: The United States Court of Appeals for the Third Circuit recently became the second federal appellate court to find one of President Obama's intra-session recess appointments to the National Labor Relations Board unconstitutional, thus raising further question of the Board's current authority. The Third Circuit held that the appointment of Craig Becker to the NLRB failed to satisfy constitutional requirements, thus invalidating a bargaining order issued by a Board panel of which Mr. Becker was a member. The Third Circuit's decision followed a D.C. Circuit decision earlier this year in which the D.C. court ruled that President Obama's three most-recent intra-session recess appointments were unconstitutional.

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By T. Christopher Bailey on March 15, 2013 at 6:00 PM

chess piecesOn January 25, 2013, the US Circuit Court of Appeals for the D.C. Circuit (Noel Canning v. NLRB) invalidated President Obama’s appointment of Sharon Block, Terence Flynn and Richard Griffin to the National Labor Relations Board based on the court’s conclusion that the three “recess” appointments failed to meet the requirements of the US Constitution. This decision calls into question over a year’s worth of Board decisions as well as the Board’s authority to act at present and for the indefinite future; however, NLRB Chairman Pearce indicated that the agency would take a “business as usual” approach until all appeals were exhausted. On March 12, the Administration announced that it would seek US Supreme Court review of the Noel Canning decision.

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