Paula Lopez, May 29, 2018. The United States Supreme Court, in a 5-4 decision written by Associate Justice Neil Gorsuch, resolved a split in the circuits over the enforceability of class action and collective action waivers contained in employee arbitration agreements by holding that arbitration agreements containing class action waivers are enforceable and not in violation of the National Labor Relations Act (“NLRA”).   The Supreme Court decision, Epic Systems Corp. v. Lewis, addresses appellate decision in the following three cases: NLRB v. Murphy Oil USA Inc. (No. 16-307),…

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Paula Lopez, August 22, 2017 The National Labor Relations Board (NLRB), in its recent decision in Butler Medical Transport LLC, upheld an administrative law judge’s decision that Butler Medical unlawfully terminated an employee for a Facebook post responding to a co-worker’s announcement that she had been terminated.  In the Facebook post, William Norvell advises his former colleague and work partner to “think about getting a lawyer and taking them to court” and to “contact the labor board too.”  In a split decision, the NLRB ruled that Mr. Norvell’s…

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Paula Lopez, May 13, 2016. Earlier this month, a split three-member NLRB panel affirmed the December 24, 2015 administrative law judge’s decision invalidating a class and collective action waiver contained in CVS’s workplace arbitration policy. The administrative decision was one of a flurry of decisions issued by the NLRB at the end of 2015 addressing this issue and continuing to apply the Board’s decisions in D.R. Horton and Murphy Oil U.S.A., Inc. to invalidate class action waivers.  D.R. Horton and Murphy Oil U.S.A. hold that implementing and maintaining…

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By: Megan J. Muoio, November 25, 2015 On October 21, 2015, the Second Circuit Court of Appeals upheld a decision by the National Labor Relations Board (NLRB) finding that two employees were improperly fired because of negative discussion of their employer on the social media site Facebook. The employees were non-union employees at the Triple Play Sports Bar and Grille located in Watertown, Connecticut. In the case before the NLRB, Three D, LLC (Triple Play) was found to have illegally fired two employees in connection with Facebook complaints…

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Paula Lopez, September 2, 2015. In a 3-2 decision issued last week, the National Labor Relations Board delivered a highly anticipated decision in NLRB v. Browning-Ferris Industries of California, Inc., broadening the joint employer standard that has been in place for the last 30 years.  The decision drew extreme reactions from dissenting board members and polarized pro-employer and pro-union organizations. Browning-Ferris Industries of California, Inc. (BFI), owns and operates a recycling facility.  BFI directly employs 60 employees, most of whom work outside the facility.  The BFI employees are…

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  By: Megan J. Muoio, August 26, 2015 On August 17, 2015, the National Labor Relations Board issued a decision reversing the March 26, 2014 decision of NLRB Regional Director Peter Sung Ohr, which found that Northwestern University scholarship football players are employees as defined by the National Labor Relations Act. Eighteen months after the decision by the Regional Director, the NLRB dealt a blow to the Northwestern players’ quest to unionize and be recognized as employees under the National Labor Relations Act. Northwestern University is one of…

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By: Megan J. Muoio, December 31, 2014 There have been a number of notable employment law developments in 2014, and employment issues for employers will continue to be dynamic into 2015. The Equal Opportunity Employment Opportunity Commission (EEOC) has initiated significant litigation and issued substantial regulations, while the National Labor Relations Board (NLRB) has pushed the envelope regarding employees’ rights issues. The Supreme Court has also been especially active in the employment law area, handing down decisions relevant to the religious rights of employers and considering issues regarding…

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Nicholas Fortuna, December 23, 2014 On December 10, 2014, in the matter of Purple Communications, Inc. a divided National Labor Relations Board held that workers have a statutory right to use an employer’s email system to engage in discussions about the terms and conditions of their employment (National Labor Relations Act, Section 7 rights) while on nonworking time. Section 7 of the NLRA grants employees the right to communicate about the terms and conditions of employment for the purpose of “collective bargaining or other mutual aid or protection.”…

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Paula Lopez, August 27, 2014. The National Labor Relations Board (NLRB) issued a ruling in the case Triple Play Sports Bar and Grille affirming the administrative law judge’s decision that two employees who were terminated because of their involvement in Facebook discussions about claims that their employer had made State tax withholding errors were unlawfully discharged in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). This decision is significant on two fronts. First, because Vincent Spinella’s (one of the terminated employees) only involvement in the…

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Nicholas Fortuna, August 21, 2014. Last week The National Labor Relations Board (NLRB) expanded the meaning of what is considered concerted activity under the National labor Relations Act (NLRA). Under the Board’s decision in Fresh & Easy Neighborhood market, Inc. and Margaret Elias, the Board determined that Elias was engaged in “concerted activity” for the purpose of ”mutual aid or protection” within the meaning of Section 7 of the NLRA when she sought assistance from her coworkers in asserting a sexual harassment complaint. In doing so, the Board…

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