02/18/2013 - NLRB Roundup: A Year in Review, and a Look Ahead
The National Labor Relations Board (“NLRB” or “Board”) began 2013 as it began 2012, facing questions regarding whether a quorum of its members had been constitutionally appointed.

05/18/2012 - NLRB Halts Implementation of New Election Rules: Vote on NLRB Election Rules Lacked Quorum, Judge Rules
On May 15, 2012, a federal district court judge for the District of Columbia struck down recent changes to the National Labor Relations Board’s representation election procedures, which were intended to streamline the Board’s representation election process.

04/20/2012 - Update: NLRB Suspends Implementation of Notice Posting Rule Pending Legal Challenges
On April 17, 2012, the Court of Appeals for the District of Columbia Circuit issued a decision enjoining the National Labor Relations Board (“NLRB” or the “Board”) from implementing a controversial rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”). 

03/07/2012 - Update: Court Upholds NLRB Adoption of Notice Posting Rule But Limits Sanctions
On March 2, 2012, a federal district court in Washington, D.C. upheld the National Labor Relations Board’s authority to adopt a proposed regulation requiring employers to post a notice informing employees of their federal labor law rights.

02/03/2012 - NLRB Roundup Part 3: New Election Rules, Class Action Waivers and (Maybe?) Recess Appointments
The National Labor Relations Board has had a busy few weeks. This alert discusses new developments.

12/28/2011 - Update: NLRB Delays Notice Posting Rule’s Effective Date
On December 23, 2011, the National Labor Relations Board (NLRB) announced that it would postpone its requirement that employers post a notice informing employees of their federal labor law rights until April 30, 2012.

12/12/2011 - NLRB Roundup Part 2: Board’s Aggressive Agenda Unabated: Required Notice, Rulemaking, Social Media, and the Boeing Case
As promised, Part 2 of our NLRB Roundup takes a step back from the case law summarized in Part 1 to address other issues surrounding the current Board and its effect on the labor law landscape.

11/30/2011 - Labor and Employment Issues in Bankruptcy, Chapter 12 of Collier Guide to Chapter 11: Key Topics and Selected Industries
This chapter provides a detailed treatment of the significant labor and employment issues that arise in chapter 11 bankruptcy cases.

10/14/2011 - NLRB Roundup Part 1: Obama Board Continues Apace Reversing Bush Board Decisions, Expanding Labor Laws
Since our last summary, the Obama Board has taken significant steps to further outgoing Chairman Liebman’s stated goal of bringing the Board “back to life after a long period of dormancy.” Our roundup will be addressed in two parts. Part one, that follows, addresses Board decisions and case law developments. Part two will address other issues involving the current Board and its effect on the labor law landscape.

03/09/2011 - Employers’ Cat’s Paw Liability: Watch Out for the Monkey Business of Supervisors
In a case decided last week, Staub v. Proctor Hospital, a unanimous United States Supreme Court finally addressed the application of the “cat’s paw” theory of liability to employment discrimination claims, holding that an employer can be liable for an employment action motivated by a non-decision maker’s discriminatory animus.

02/22/2011 - OSHA 2010 and 2011: A Review of OSHA’s Expanded Enforcement Initiatives in 2010 and the Outlook for 2011
The business community has been placed on notice. OSHA has been actively pursuing its regulatory agenda, while also arming its arsenal to enforce compliance.

02/09/2011 - NLRB Roundup: More Frequent and Significant Action from Obama Appointees
The Obama National Labor Relations Board (“NLRB”) has started to make its mark on the labor laws through a series of changes that collectively may have a significant impact on the labor law environment.

02/03/2011 - Have You Checked The Records? OSHA Continues to Emphasize Recordkeeping Compliance in 2011
After launching a National Emphasis Program (“NEP”) on recordkeeping in 2009, OSHA has focused increasingly more on recordkeeping compliance when conducting workplace inspections.

11/19/2010 - Employers' Eye on the Court: The U.S. Supreme Court Will Decide a Host of Employment-Related Cases During its Current Term
The U.S. Supreme Court began its new 2010-2011 term on October 4, 2010 with a number of employment-related cases on the docket, many of which have already been orally argued, that could potentially impact employers concerning such matters as arbitration, retaliation, immigration, and employee benefits.

10/28/2010 - Change is on the Way from the NLRB
The Obama-appointed NLRB has now issued its first significant batch of decisions serving notice, as is typical in the transition from one administration to the next, of a shift in the interpretation of the labor laws. The decisions include a new standard regarding secondary boycotts and union bannering; potential reconsideration of prior precedent; and a differing application of the law to facts than the predecessor NLRB.

10/15/2010 - Carter, Foreman and Glass Guest Column in Law360: Retiree Benefits And Bankruptcy Code Compliance
Once a company files a Chapter 11 bankruptcy petition (to sell its assets, reorganize or liquidate), Bankruptcy Code § 1114 sets forth a detailed procedure for the employer to follow to modify or terminate certain retiree benefits.

10/12/2010 - If It Looks Like a Picket, But Doesn’t Walk Like a Picket…It’s a Banner
On August 27, 2010, the National Labor Relations Board issued its long-awaited decision holding that bannering at a secondary employer’s place of business was not an unfair labor practice.

09/28/2010 - Weathering the Storm: Third Circuit Rules Regardless of Plan Reservation of Rights Language, Bankruptcy Debtor Must Comply with the Bankruptcy Code to Amend, Modify or Eliminate Retiree Benefits
Once a company files a Chapter 11 bankruptcy petition (to sell its assets, reorganize or liquidate), Bankruptcy Code § 1114 sets forth a detailed procedure for the employer to follow to modify or terminate certain retiree benefits.

07/29/2010 - Litigating Arbitration Agreements: Recent United States Supreme Court Decisions Provide Guidance to Employers Looking to Avoid Court
Despite entering into arbitration agreements with their employees, employers all too often find themselves in court adverse to the very employees who have signed an arbitration agreement. The U.S. Supreme Court recently issued three arbitration decisions that have important implications for employers seeking to avoid the inside of a courtroom.

06/30/2010 - U.S. Supreme Court Upholds Employer Searches and Underscores Importance of Electronic Communications Policies
The United States Supreme Court issued a unanimous decision that provides guidance on steps employers can take to reduce an employee’s privacy expectations and emphasizes the importance of having a clear, well-defined privacy policy.

06/09/2010 - Federal Government Implements Pro-Union Notice Requirement for Government Contractors
Government contractors and subcontractors now have a new, unsavory obligation. On January 30, 2009, President Obama signed Executive Order 13496 – which requires government contractors and subcontractors to post a notice informing employees of their right to engage in concerted, collective activity.

04/22/2010 - Employers Beware: How the Recent Health Care Reform Legislation Affects Employers
On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act (“PPACA”), which President Obama signed into law on March 23, 2010. The health care reform law will make far-reaching changes to the United States health care system over the next several years. 

03/30/2010 - Time for Recess: Becker, Pearce Appointed to NLRB
The National Labor Relations Board (“NLRB”) is finally moving towards its full complement of five members. On March 27, 2010, President Barack Obama made two recess appointments (a procedure not requiring legislative approval), increasing the NLRB’s membership from the two that have been serving the past couple of years to four members. The appointments still leave the NLRB one member short; however, three members constitute a quorum that can unquestionably decide cases before the Board.

07/31/2009 - Employers Beware: Unions Win Battle in War Over E-Mail Use
With the advent of information technology, union supporters have frequently used employer e-mail systems to solicit support during union organizing campaigns. Recognizing the difficulty in monitoring these activities, the National Labor Relations Board (NLRB), in Register-Guard, concluded that employees have no statutory right to use an employer’s e-mail system for union-related activities.

06/19/2009 - U.S. Supreme Court Increases Employee Burden of Proof in Age Bias Cases
In Gross v. FBL Financial Services, Inc., decided on June 18, 2009, a deeply divided U.S. Supreme Court imposed a heightened proof burden on employees to establish age discrimination against their employers. In a 5-4 decision, the Court concluded that the literal text of the Age Discrimination in Employment Act (“ADEA”) does not allow a worker to prove discrimination by demonstrating that age was one “motivating factor” for the employer's adverse employment action.

06/19/2009 - Weathering the Storm: Options to Remove Liabilities for High Retiree Medical Costs from a Company’s Balance Sheet: VEBAs
High legacy costs for retiree medical benefits, along with Financial Accounting Standards Board Standard No. 158, which requires balance sheet recognition of such liability, has forced many companies to face the true size of the retiree medical obligations and to consider ways to reduce or limit costs.

05/27/2009 - Weathering the Storm: Retiree Benefits and Section 1114
Retiree benefits are often a central issue in bankruptcy cases. For many employers the high cost of retiree medical benefits has been a significant contributing factor to the Chapter 11 filing and a matter of ongoing concern if the debtor is to be able to successfully reorganize. Understandably, employees, retirees and unions are equally concerned about the status of retiree benefits. This alert discusses Section 1114 of the Bankruptcy Code.

05/06/2009 - Restructuring Compensation During Economic Challenges
Employers are facing a number of economic and financial challenges. Some employers have considered restructuring their compensation arrangements with employees as an alternative to avoid a reduction in force or layoffs. Restructuring of compensation packages raises a number of issues. 

04/22/2009 - Texas Supreme Court Provides Greater Protection to Employers Seeking to Enforce Non-Compete Covenants
Building on its 2006 decision in Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), the Texas Supreme Court has further expanded the enforceability of non-compete covenants in the at-will employment setting. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, No. 07-0490 (Tex. April 17, 2009), a decision with significant practical implications for Texas employers, the court held that an employer’s implied promise to provide confidential information to an at-will employee may give rise to an enforceable covenant not to compete.

04/09/2009 - Weathering the Storm: Terminations, Uncertainty, and Strategies to Reduce Workplace Liability
In the current economic state, many employers are seeking to reduce operating costs. More employees are being let go as corporate layoffs have accelerated and workers are looking to complain that they have been unfairly or improperly dismissed. The Obama administration has publicly announced that it will be more aggressive in enforcing employment laws.

04/03/2009 - Supreme Court Holds That Employees Under Collective Bargaining Agreement Are Blocked From Going to Court On Age Discrimination Claims, Must Arbitrate Instead
In 14 Penn Plaza LLC v. Pyett, a decision with significant practical ramifications for unionized employers, the United States Supreme Court, on April 1, 2009, held that employees covered under a collective bargaining agreement were required to arbitrate claims of age discrimination under the arbitration clause of that agreement instead of allowing them to sue in Court.

03/04/2009 - President Obama Signs Fourth Executive Order Concerning Unions
On February 6, 2009, President Barack Obama signed his fourth executive order concerning federal contractors and labor matters. This order (the “Order”) encourages federal agencies contracting with private businesses for large-scale construction projects to mandate project labor agreements (“PLA”) for the entirety of the project. 

02/16/2009 - U.S. Supreme Court Protects Workers from Retaliation in Workplace Discrimination Investigations
On January 26, 2009, the United States Supreme Court, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, concluded that Title VII’s anti-retaliation provision protects an employee-witness who “speaks out” about alleged discrimination “not on the employee’s own initiative,” but in answering questions during the employer’s internal investigation.

02/05/2009 - President Obama Signs Three Executive Orders Concerning Unions
On Friday, January 30, 2009, in a move targeting Bush-era policies that some viewed as unfriendly to organized labor, President Barack Obama signed three executive orders: Notification of Employee Rights Under Federal Labor Laws; Nondisplacement of Qualified Workers Under Service Contracts; and Economy in Government Contracting. Regarding these orders, President Obama commented, “We need to level the playing field for workers and the unions that represent their interests. . .”

01/30/2009 - President Obama Signs Lilly Ledbetter Fair Pay Act
On Thursday, January 29, 2009, in a widely anticipated move, President Barack Obama signed his first bill into law, approving the Lilly Ledbetter Fair Pay Act. This legislation focuses on salary bias in the workplace. Discussed in greater detail below, the Ledbetter bill essentially negates a 2007 United States Supreme Court decision that limited a woman’s ability to sue for pay discrimination long after the first discriminatory paycheck occurred.

01/20/2009 - House Passes Two “Fair Pay” Bills
On January 9, 2009, the United States House of Representatives passed the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The bills now go to the Senate for consideration, and President Obama is expected to sign both into law should they reach his desk.

11/21/2008 - The ADA’s Rebirth: Complying with the ADA Amendments of 2008
Based on several new amendments to the Americans with Disabilities Act (ADA), the statute has been reborn – it offers vastly expanded coverage to a wide variety of employee physical and mental impairments and will require employers to focus on creating and offering reasonable accommodations to individuals with disabilities. On January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) will become effective and, in large part, it removes an employer’s common defense that the individual’s particular impairment does not constitute a “disability” under the ADA.