As explained in greater detail by our colleague Stuart M. Gerson, the Supreme Court of the United States handed down two major, and quickly decided, rulings on January 13, 2022. After hearing oral arguments only six days earlier, the Court issued two unsigned decisions per curiam. A 5-4 decision in Biden v. Missouri dissolved a preliminary injunction against enforcement of an interim final rule (“Rule”) promulgated by the Centers for Medicare & Medicaid Services (CMS), requiring recipients of federal Medicare and Medicaid funding to ensure that their employees are vaccinated against COVID-19.
On March 11, 2020, the World Health Organization declared that the 2019 novel coronavirus (known as “COVID-19”) is now a pandemic. The effects continue to be felt in the United States, which currently has well over 1,000 cases of COVID-19. As of March 12, 2020, 19 states have declared a state of emergency to ensure there are resources to address the coronavirus, and President Trump has announced a ban on travel to and from Europe for 30 days starting on Friday, March 13, 2020, which was extended to the United Kingdom and Ireland on March 15th. Additionally, on March 13, 2020 President ...
Our colleague Steven M. Swirsky .
Following is an excerpt:
The National Labor Relations Board, in its December 17th decision in Apogee Retail LLC d/b/a Unique Thrift Store, has reversed its prior rule and held that employer requirements that employees treat ...
Our colleague Steven M. Swirsky
Following is an excerpt:
The National Labor Relations Board (“Board” or “NLRB”) has announced that it is publishing proposed changes to its Rules and Regulations that will begin to reverse the Board’s 2014 changes, which took effect in 2015, to its representation election ...
On June 5, 2019, Governor Steve Sisolak of Nevada signed AB 132 (the “Law”), which prohibits employers from declining to hire a prospective employee based on pre-employment marijuana drug tests. On the heels of a new New York City law which prohibits employers from requiring pre-employment drug testing for marijuana and tetrahydrocannabinols (the active ingredient in marijuana), Nevada is now the first state to prohibit employers from using pre-employment drug tests to screen out applicants who use marijuana.
Under the Law, beginning January 1, 2020, employers in Nevada ...
As we previously reported, on April 9, 2019, the New York City Council passed Int. 1445-A, which prohibits employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana). On May 10, 2019, Int. 1445-A became law by operation of the New York City legislative process, which automatically made the bill law after 30 days without action by Mayor de Blasio. The law becomes effective May 10, 2020, giving New York City employers one year to prepare.
Under the law, employers, labor organizations, and employment agencies ...
Our colleague Steven M. Swirsky at Epstein Becker Green has a post on the Management Memo blog that will be of interest to our readers: “NLRB Reverses Key Rulings: Returns to Pre-Obama Board Test for Deciding Joint-Employer Status and for Determining Whether Handbooks, Rules and Policies Violate the NLRA – Assessment of 2014 Expedited Election Rules and Future Changes Also Announced.”
Following is an excerpt:
It should come as no surprise that recent days have seen a stream of significant decisions and other actions from the National Labor Relations Board as Board Chairman ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “OSHA Withdraws 'Fairfax Memo' – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities.”
Following is an excerpt:
On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards.”
Following is an excerpt:
NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “Can Your Corporate Social Responsibility Policy Make You a Joint-Employer With Your Suppliers? The NLRB May Find That It Does”
Following is an excerpt:
The National Labor Relations Board (NLRB or Board), which continues to apply an ever expanding standard for determining whether a company that contracts with another business to supply contract labor or services in support of its ...
Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Drops Other Shoe on Temporary/Contract Employee Relationships: Ruling Will Require Bargaining In Combined Units Including Employees of Multiple Employers – Greatly Multiplies Impact of BFI Expanded Joint Employer Test.”
Following is an excerpt:
The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “Federal Appeals Court Sides with NLRB – Holds Arbitration Agreement and Class Action Waiver Violates Employee Rights and Unenforceable.”
Following is an excerpt:
The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Looks to Make It Harder for Employees to Decertify Unions."
Following is an excerpt:
National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., has announced in a newly issued Memorandum Regional Directors in the agency’s offices across the country that he is seeking a change in law that would make it much more difficult for employees who no longer wish to be ...
Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Argues 'Misclassification' as an Independent Contractor Is Unfair Labor Practice.”
Following is an excerpt:
In a further incursion into the area of the gig and new age economy, the Regional Director for the National Labor Relations Board’s Los Angeles office has issued an unfair labor practice complaint alleging that it is a violation of the National Labor Relations Act (the ...
Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health industry: “Department of Labor Releases New Persuader Rule Intended to Aid Union Organizing.”
The US Department of Labor has finally issued its long awaited Final Rule radically reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA.”). The Final Rule eviscerates any meaningful use of the Advice Exemption, which would be swallowed ...
When: Thursday, October 15, 2015 8:00 a.m. – 3:00 p.m.
Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019
This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.
In addition, we are excited to welcome our keynote speaker ...
My colleague, Steven M. Swirsky, published a Management Memo post that will be of interest to many of our readers: “First Challenge to NLRB’s New Election Rules Dismissed –Rules Held Constitutional.”
Following is an excerpt:
One of two lawsuits challenging the National Labor Relations Board’s authority to issue the expedited election rules that took effect on April 14, 2015, has now been dismissed by Judge Robert L. Pitman of the United States District Court for the Western District of Texas in Austin. In his 27 page decision, Judge Pitman that the plaintiffs ...
My colleagues Steven M. Swirsky and Evan J. Spelfogel published a Management Memo blog post that will be of interest to many of our readers: “Regional Directors Report Data on The NLRB’s Amended Election Rules After One Month – Court Challenges Continue.”
Following is an excerpt:
May 14th marked the one-month anniversary of the effective date of the NLRB’s Amended Representation Election Rules (“amended rules”). That day, the Regional Directors for NLRB Regions 2 (New York, NY), 22 (Newark, NJ), and 29 (Brooklyn, NY) discussed their ...
On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.
The suit was filed by the Chamber of Commerce of the United ...
The Ebola virus disease (“Ebola”) has become a worldwide threat, which, among many other effects, has forced employers to think about how to protect their employees. Employers also must consider how Ebola might impact employment policies and procedures, including, but not limited to, those addressing attendance, leaves of absence, discipline, and medical testing.
My colleagues and I have written a detailed Act Now advisory providing legal framework of best practices and legal risks pertaining to Ebola.
Click here to read the advisory in its entirety.
By: Adam C. Abrahms, Kara M. Maciel, Steven M. Swirsky, and Mark M. Trapp
The U.S. Supreme Court today held that the US Senate was not in recess on January 4, 2012, when President Obama made three “recess” appointments to the National Labor Relations Board under the Constitution’s Recess Appointment Clause. In simple terms that means that the recess appointments were not proper and decisions in which the recess appointees participated were not valid.
What this now means is that hundreds of cases decided by the NLRB following the January 4, 2012 recess appointments to the Board ...
By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel and Casey M. Cosentino
As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.
As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts ...
On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board. The Senate also confirmed current NLRB Chairman Mark Gaston Pearce (D).
The confirmations are of course the result of the Senate Republicans backing down in the face of the threat by Senate Democrats to change Senate rules so that they could force a vote, up or down, on President Obama’s nominations for the Board ...
by: Steven M. Swirsky and D. Martin Stanberry
An NLRB Administrative Law Judge (“ALJ”) has found that two computer usage policies of University of Pittsburgh Medical Center (“UPMC”) violated the National Labor Relations Act (“Act”) because they had an unreasonable tendency to chill employee activities, including union organizing and employee discussions about terms and conditions of employment, protected by Section 7 of the Act.
The policies at issue prohibited employees from using the employer’s email and other electronic messaging systems “in a way that ...
by: James S. Frank, Steven M. Swirsky, and D. Martin Stanberry
The Second Circuit Court of Appeals ruled on Wednesday February 27th, in NLRB v. Special Touch Home Care Servs. Inc., 11-3147 (2d.Cir., Feb. 27, 2013) (PDF) that the NLRB erred when finding that 48 home health aides were protected by the National Labor Relations Act (“Act”) when they participated in a strike after affirmatively telling their employer that they would be present for their shifts at their respective patients’ homes during the week of the strike.
While the NLRB had held that the workers actions were ...
by: Adam C. Abrahms, Kara M. Maciel, Evan J. Spelfogel and Steven M. Swirsky
In a time when employers do not receive much good news out of Washington D.C., the U.S. Court of Appeals for the D.C. Circuit may have given some very welcome relief to employers facing issues before the National Labor Relations Board (“NLRB” or “the Board”) in light of recent precedent reversing NLRB decisions. Quoting from early Constitutional authority including The Federalist Papers and Marbury v. Madison, the D.C. Circuit ruled today that President Obama’s “Recess Appointments” of three ...
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