Labor & Employment Law Update

As the 2024 construction season gets underway, and with an increasing number of construction projects being completed with a mix of union and non-union subcontractors, many workers have legitimate questions about their rights and responsibilities on such mixed-staffed projects.

Today, the National Labor Relations Board (NLRB) just handed big labor a major assist when it comes to union organizing. In Cemex Construction Materials Pacific, LLC  and International Brotherhood of Teamsters 31-CA-238239, 372 NLRB 130, the NLRB ruled that an employer must essentially recognize a labor union claiming to represent a majority of its employees in an appropriate unit --- unless the employer promptly files a petition (an RM Petition) to test the union’s majority status or the appropriateness of the unit. The NLRB went on to explain that absent unforeseen ...

The National Labor Relations Board, as currently constituted, continues its efforts to kneecap employers who dare to resist unionization efforts. We have already seen NLRB General Counsel, Jennifer Abruzzo’s, scorched-earth approach to promote unionization through enforcement activities targeting employer conduct that for decades has been perfectly lawful, and then suddenly finding the same conduct to be unlawful and unfair labor practices (including attempting to remove employers’ rights to require a secret-ballot election, instead of accepting authorization cards, to determine union support by a majority of employees; and making it unlawful for employers to hold group meetings with employees during union organizing campaigns to educate employees about the union and the collective bargaining process). Now, not only is conduct that previously has been considered lawful been deemed unlawful, the NLRB is promoting enhanced penalties and damages for employers who commit unfair labor practices.

On April 11, 2022, the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, filed a brief in a case pending before the NLRB, Cemex Construction Materials Pacific, seeking a return to the NLRB’s long-abandoned Joy Silk doctrine. Under that doctrine, unions may obtain representational status, simply by claiming to have the support of a majority of a private employer’s employees (typically through union card signing)—and putting the burden on the employer to affirmatively demonstrate a good-faith doubt as to that majority status in order to lawfully ...

The National Labor Relations Board (NLRB) ruled 3-1 on July 21, 2021 that labor unions may continue to use large, inflatable balloons–usually in the shape of an ugly rat–to aid in publicity of labor disputes, whether connected with traditional picketing activity or without.  The inflatable rat balloon used by the International Union of Operating Engineers, Local 150 has been nicknamed “Scabby.”  Scabby was the subject of the NLRB’s ruling.  In that case, Local 150 erected Scabby and banners at the entrance to the parking lot at an RV tradeshow.  The rat and signage identified ...

COVID-19 Pandemic Allows Unions to Make Inroads with Health Care Workers

For health care workers, the issues of staffing, wages and benefits are typically what unions have focused on in their organizing campaigns. Against the backdrop of the COVID-19 pandemic, these issues are heightened with the added urgency of worker safety. The realities created by the pandemic have and will likely continue to make their impact on health care workers – even prompting some who never may have considered union representation – to reconsider their position. For example, in ...

As the 2021 construction season gets underway, and with an increasing number of construction projects being completed with a mix of union and non-union subcontractors, many workers have legitimate questions about their rights and responsibilities on such mixed-staffed projects. These questions especially can arise when a “dual-gate” system has been established (creating a “neutral” gate for union contractors and a separate, “reserved” gate for non-union contractors), or when a union is involved in different types of activities at the jobsite, such as ...

The mis-named Protecting the Right to Organize Act (PRO Act) was reintroduced in the U.S. Congress on February 4, 2021. The PRO Act, which originally was introduced in 2019 and passed the House of Representatives in 2020, would completely change the landscape in the labor-relations world. You may recall that our recent blog post advised that reintroduction of the PRO Act likely was a priority of the Biden Administration and the revamped U.S. Congress.

Billed by Democrats as legislation to support workers’ rights, the PRO Act is less worker-friendly than Union-friendly. If ...

In response to the recent increased spread of Coronavirus in Ohio, Governor DeWine and the Ohio Department of Health have enacted several new Orders affecting all Ohio residents. Namely, in addition to existing protocols and guidelines for businesses, which remain in effect, the state has now instituted a 21-day curfew and restrictions for certain types of mass gatherings. 

Statewide Curfew – Effective November 19, 2020

In order to help curb the spread of the coronavirus, the Ohio Department of Health has mandated a statewide curfew for all Ohio residents, from 10 PM to 5 AM daily ...

In April 2018, the US Department of Labor (DOL) Wage and Hour Division, launched  the six-month pilot Payroll Audit Independent Determination (PAID) program which provides a voluntary framework for employers to self-report potential FLSA overtime and minimum wage violations to the DOL and to resolve those violations without incurring additional penalties or liquidated damages. There are important benefits (and potential risks) to consider before signing up for PAID:

• The benefit of the program is that if an employer self-reports, the DOL will only require the employer to pay back ...

On April 2, 2018 in the matter of Encino Motorcars, LLC v. Navarro, No. 16-1362, 2018 WL 1568025 (U.S. Apr. 2, 2018), the Supreme Court rejected the long held principle that exemptions to the Fair Labor Standards Act (FLSA) should be construed narrowly and found that car dealership service advisors are exempt from the FLSA’s overtime-pay requirement. In a 5-4 decision, the Court held there was no reason or basis under the FLSA to narrowly interpret FLSA exemptions and that exemptions should be read equally as any other provision of the Act.

Impact – Car dealerships can ...

On October 30, 2014 in the case of Overstreet v. Farm Fresh Co. Target One LLC, No. 2:13-cv-02358, the Arizona Federal District Court ordered attorney’s fees be paid to Farm Fresh Co. Target One LLC (Farm Fresh) by the National Labor Relations Board (NLRB) due to the NLRB’s demand that Farm Fresh reinstate four employees without following the federal and Arizona state laws governing the use of E-Verify.

In 2013, Farm Fresh was purchased through an asset purchase agreement by a new owner.  The new owner (after receiving advice and guidance from the Dept. of Homeland Security ...

In a recent memorandum, the Office of the General Counsel for the National Labor Relations Board (“NLRB”), informed all regional directors that the NLRB had entered into a program with the Occupational Safety and Health Administration (“OSHA”) and the Wage and Hour Division of the U.S. Department of Labor (“DOL”) whereby NLRB investigators, in certain circumstances, will actively encourage parties that file an unfair labor practice (“ULP”) charge to also file charges or complaints with OSHA and the DOL for potential violations of the Occupational Safety and ...