Hospitality Labor and Employment Law Blog

Hospitality Labor and Employment Law Blog

Tag Archives: NLRB

Employers: How to Prepare for “A Day Without” Actions

A new post on the Management Memo blog will be of interest to many of our readers in the hospitality industry: “‘A Day Without’ Actions – How Can Employers Prepare?” by our colleagues Steven M. Swirsky and Laura C. Monaco of Epstein Becker Green.

Following is an excerpt:

[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by … Continue Reading

Fifth Circuit: Outsourcing Violated the NLRA – Employment Law This Week

Featured on Employment Law This Week:  The U.S. Court of Appeals for the Fifth Circuit backs the National Labor Relations Board (NLRB) in an outsourcing dispute.

The NLRB found that a management company violated the National Labor Relations Act when it outsourced the cleaning staff of a hotel that it managed. The NLRB found evidence that the outsourcing decision was related to the worker’s interest in union representation. The NLRB rejected the company’s argument that the decision was due to declining guest satisfaction, concluding that the decision was at least, in part, motivated by anti-union animus. The Fifth Circuit has … Continue Reading

Changes to NLRB Election Rules and Employee Handbook and Email Standards Are Likely Under Miscimarra

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 hospitality 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 … Continue Reading

Fifth Circuit Pays Special Deference to NLRB’s Determination that Hotel Management Company Acted with Anti-Union Animus in Outsourcing Housekeeping Department

Fifth Circuit Pays Special Deference to NLRB’s Determination that Hotel Management Company Acted With Anti-Union Animus In Outsourcing Housekeeping DepartmentA recent decision of the U.S. Court of Appeals for the Fifth Circuit illustrates the potential pitfalls of outsourcing in the face of a union campaign, as well as the steep hurdle employers face in overturning a decision of the National Labor Relations Board (“NLRB”). In Remington Lodging & Hospitality, LLC v. NLRB, the Fifth Circuit enforced an NLRB order holding that a hotel management company’s decision to outsource the hotel’s housekeeping department was motivated at least in part by anti-union animus and therefore violated Section 8(a)(3) of the National Labor Relations Act (“the Act”).

In late 2011, Remington … Continue Reading

Top Issues of 2016 – Featured in Employment Law This Week

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

  • Impact of the Defend Trade Secrets Act
  • States Called to Ban Non-Compete Agreements
  • Paid Sick Leave Laws Expand
  • Transgender Employment Law
  • Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
  • NLRB Addresses Joint Employment
  • NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

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Things to Come at the NLRB: The General Counsel’s Plans

On March 26, the General Counsel (“GC”) of the NLRB signaled that he will be asking the Board to overturn or modify many precedents that negatively impact unions when it comes to organizing and collective bargaining. In Memorandum GC 16-01 (“GC Memo”), the GC directed the Regional Directors in the Board’s offices across the country, who are charged with investigating unfair labor practice (“ULP”) charges and deciding which cases to take to trial, to forward all charges involving issues identified in the GC Memo to the GC’s Division of Advice (“Advice”). It is clear that Advice will instruct the Regional … Continue Reading

Are You a Joint-Employer with Your Suppliers? NLRB Examines Corporate Social Responsibility Policies

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 hospitality 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 operations should … Continue Reading

NLRB Multiplies Impact of Expanded Joint Employer Test: Requires Bargaining in Combined Units Across Multiple Employers

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 hospitality 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 NLRB #39 (2016) that it will now conduct … Continue Reading

Seventh Circuit Court of Appeals Sides with NLRB on Class Action Waivers and Mandatory 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 hospitality 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 agreement … Continue Reading

NLRB May Make It Harder for Employees to Decertify Unions

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 hospitality 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 … Continue Reading

Five Evolving Issues Confronting Employers in the Hospitality Industry

Our colleagues Jeffrey H. Ruzal, Steven M. Swirsky, Joshua A. Stein, Brandon C. Ge, Adam C. Solander, and Valerie Butera contributed to Epstein Becker Green’s recent Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues in the hospitality industry:

  1. The U.S. DOL’s Aggressive Moves to Expand FLSA Coverage
  2. The NLRB’s New Test for Determining Joint-Employer Status and Its Impact on Hospitality Employers
  3. At the 25th Anniversary of the ADA, How to Avoid Getting Bitten by Service Animal Complaints
  4. The Cadillac Tax: What Hospitality Employers Need to Know
  5. OSHA’s Revised
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Washington Court Dismisses Challenge to NLRB’s Ambush Election Rules

My colleague Steven M. Swirsky at Epstein Becker Green published a Management Memo blog post concerning U.S. District Judge Amy Berman Jackson granting summary judgment in favor of the NLRB – “Washington Court Dismisses Challenge to NLRB’s Ambush Election Rules.”

Following is an excerpt:

U.S. District Court Judge Amy Berman Jackson on Wednesday issued a 72 page opinion (PDF) rejecting each of the arguments raised by the U.S. Chamber of Commerce, the National Retail Federation and other business groups and found that the Amended Election Rules adopted by the National Labor Relations Board in December 2014, which took … Continue Reading

NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity

My colleague Nancy L. Gunzenhauser at Epstein Becker Green has a Management Memo blog post that will be of interest to many of our readers: “NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity. ”

Following is an excerpt:

While we have been reminding readers of the fact that  the National Labor Relations Act (the “Act”) protects employees regardless of whether they are represented by a union and the Act applies to non-unionized workforces, too, recently  a National Labor Relations Board (the “NLRB”) Administrative Law Judge issued a decision following an unfair labor practice (“ULP”)  hearing … Continue Reading

First Challenge to NLRB’s New Election Rules Dismissed – Rules Held Constitutional

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, including Associated Builders and Contractors of Texas … Continue Reading

Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections

My colleague, Adam C. Abrahms, published a Management Memo blog post that will be of interest to many of our readers: “Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections.”

Following is an excerpt:

A couple weeks ago we provided anecdotal reports from several NLRB Regional Directors that after one month the new Ambush Election Rules union elections were being held in considerably less time, with the Regional Directors claiming elections were being scheduled between 25-30 days.  Last week, according to BNA’s Daily Labor Report and Law360, the NLRB released … Continue Reading

NLRB’s New Election Rules Challenged As Unconstitutional

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 States, … Continue Reading

NLRB Rules That Employees Can Use Company Email for Union Organizing – Affects All Employers

Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: “NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing – Union and Non-Union Employers Are All Affected.” Following is an excerpt:

In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work.  While the majority in Purple Communications characterized the decision as “carefully … Continue Reading

BIG MAC ATTACK : NLRB General Counsel Argues Franchisees and McDonald’s Are Joint Employers

With the  continued strength of franchising in the hospitality sector and the ever growing reliance on vendors and subcontractors to perform many functions in distribution, maintenance, asset protection and other functions  that hospitality employers historically  performed with their own employees, creating different levels of integration and affiliation between hospitality entities among providers and their various service providers and contractors, the issue of joint-employer status has become a prominent issue of concern. As the NLRB moves towards a broader definition of joint employer status, the  NLRB’s General Counsel’s position in a series of cases involving McDonald’s and numerous franchisees across the … Continue Reading

OSHA and NLRB Agreement Opens New Door To Whistleblower Claims

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] … Continue Reading

All NLRB Decisions and Actions From August 27, 2011 Through July 17, 2013 Are Invalid or in Doubt

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 s 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 … Continue Reading

NLRB Receives Spirited Debate Over Ambush Election Rules During Public Meeting

For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were largely split between the labor unions applauding the NLRB’s proposed rule on making elections faster; whereas, … Continue Reading

NLRB Public Meeting: Kara Maciel to Speak on Ambush Election Rules

Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.

The panels will address the following topics:

  • Panel B.2: Requirement for written statement of position
    Address issues related to the proposed requirement for a written statement of position.
  • Panel E.1 & E.3: Election date
    Please describe the standard to be applied for scheduling an election. The proposed rules state that the regional director should select an election date
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Groundhog Day: Pro-Labor NLRB Again Attempts to Put The “Fix” In Union Elections: Reissues Discredited “Ambush” Election Rules

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 … Continue Reading

Hospitality Employers: Prepare for NLRB Social Media Policy Scrutiny

In a recent Law360 article, "NLRB Social Media Push Looms Large for Hospitality Sector" (subscription required), our colleague Mark Trapp comments on the importance for unionized and non-unionized hospitality employers to review their social media policies.

Following is an excerpt:

With the National Labor Relations Board increasingly interjecting into non-union issues, hotels, restaurants and other labor-intensive hospitality companies need to brace for potential claims and tread carefully when crafting social media policies for employees, experts say.

Over the last few years, the NLRB has been extending its reach — traditionally centered on union or collective bargaining matters — to

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