Christian White

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Sticks and Stones Break Bones, and the NLRB Protects the Words That Hurt: The NLRB’s Latest Decision Expands Protections for Profane Worker Outbursts

By Meagan Martin, Christian White and Delores Chichi on May 16, 2023 Posted in NLRB

In the latest swing away from recent precedent, the National Labor Relations Board (NLRB or Board) issued its ruling in Lion Elastomers LLC II, which overturns the 2020 General Motors LLC decision. These decisions address an employer’s ability to issue discipline in response to a worker’s profane speech or conduct purportedly taking place in the … Continue Reading

Q&A Regarding the NLRB’s Decision on Confidentiality and Non-Disparagement Provisions in Severance Agreements

By Christian White, Todd Dawson, Pat Muldowney, Todd Lebowitz, Paul Rosenberg and Delores Chichi on March 30, 2023 Posted in NLRB

We recently wrote about the National Labor Relations Board’s (“NLRB” or “Board”) decision in McLaren Macomb (the “decision”) which reversed several Trump-era rulings that largely had allowed employers to proffer severance agreements to employees (generally, non-supervisors) containing broad confidentiality and non-disparagement provisions. In response to the widespread uncertainty related to the decision, NLRB General Counsel (“GC”) Abruzzo … Continue Reading

The NLRB Embraces Relativism in its Relevance Test

By Christian White, Todd Dawson and Kubicki, Paul C on March 8, 2023 Posted in NLRB

Under the National Labor Relations Act, unions are entitled to request information from an employer that is relevant to carrying out the union’s representation duties. The key limiting principle is that the union must demonstrate the “relevance” of information that does not pertain directly to the wages, hours or working conditions of bargaining unit employees. … Continue Reading

Severing from Precedent: NLRB Restricts Employers’ Ability to Include Standard Confidentiality and Non-Disparagement Provisions in Severance Agreements

By Delores Chichi and Christian White on March 1, 2023 Posted in NLRB

The National Labor Relations Board issued a decision that reversed several Trump-era rulings allowing employers to proffer severance agreements to employees containing broad confidentiality and non-disparagement provisions. The Board’s decision holds that the “mere proffer” of a severance agreement containing a confidentiality and/or non-disparagement provision is unlawful where the clause is drafted too broadly and would … Continue Reading

Employers Beware: NLRB Remedies Likely to Be More Expansive Moving Forward

By Christian White, Carlos Torrejon and Todd Dawson on August 17, 2022 Posted in NLRB

For the first time in over three decades, the National Labor Relations Board (NLRB or Board) has ordered an employer to reimburse employees for wages they lost while attending negotiation sessions on behalf of the union. Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118 (2022). The Board found that the employer involved in the … Continue Reading

Stacking the Deck: NLRB General Counsel Seeks Union-Friendly Labor Law Reform in Card Check Recognition Procedure

By Christian White and Carlos Torrejon on May 11, 2022 Posted in NLRB

In what can only be viewed as tilting the odds in favor of organized labor, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo recently filed a brief with the five-member, Democratic-controlled Board in a case pending on appeal – Cemex Construction Materials Pacific, LLC – to request the reinstatement of the Joy Silk doctrine. … Continue Reading

NLRB General Counsel Seeks to Outlaw Employer Use of Captive Audience Meetings

By Todd Dawson, Christian White and Carlos Torrejon on April 11, 2022 Posted in NLRB

On April 7, 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued what may be her most pro-union directive to date – and that’s saying something. In GC Memorandum 22-04, Abruzzo announced her intention to seek a ban on employer mandatory meetings during union organizing campaigns, commonly referred to as “captive audience meetings.” … Continue Reading

The Times Are A-Changing for Employer Handbooks … Soon

By Christian White, Todd Dawson and Carlos Torrejon on March 14, 2022 Posted in NLRB

As we previously reported, the National Labor Relations Board (the Board) invited public comment in January on whether it should overrule its current standard for determining the lawfulness of employee handbook policies and work rules. That standard – which applies in both union and nonunion workplaces – was adopted by the Board during the Trump … Continue Reading

Staying the Course … for Now

By Todd Dawson and Christian White on March 3, 2022 Posted in NLRB

National Labor Relations Board Confirms Presumption that Single-Store Units Are Appropriate The National Labor Relations Board (Board) recently confirmed that single-store bargaining units are presumed to be appropriate. Starbucks Corp., 371 N.L.R.B. No. 71 (Feb. 23, 2022). The union involved in the case petitioned to represent a unit of Starbucks employees who worked at a … Continue Reading

Sentence First, Verdict Later!

By Christian White and Todd Dawson on February 14, 2022 Posted in NLRB

NLRB Orders Employer To Grant Undetermined Wage Increase These days, the National Labor Relations Board (NLRB or Board) just gets curiouser and curiouser. In one of its latest adventures on the other side of the looking glass, the Board held that a hospitality employer violated the law by failing to provide a wage increase to … Continue Reading

The NLRB Signals It Is Time To Review Employee Handbooks – Again

By Christian White and Carlos Torrejon on January 31, 2022 Posted in FTC, NLRA, NLRB

“I’ll be back,” as famously stated by Arnold Schwarzenegger in “The Terminator,” likely applies to the National Labor Relations Board’s (NLRB) prior, less-employer-friendly test for examining workplace policies and procedures. Earlier this month, the NLRB invited public briefing on whether it should adopt a new legal standard when evaluating the lawfulness of employer rules. In … Continue Reading

Another One Bites the Dust? NLRB Request for Briefing on Independent Contractor Standard Suggests Another Trump-Era Decision Is About To Be Overruled

By Todd Dawson and Christian White on January 11, 2022 Posted in NLRA, NLRB

Weeks after inviting public briefing on a potential change in the standard for determining the appropriateness of proposed bargaining units (discussed here), the National Labor Relations Board (NLRB) has again invited briefing in a pending case involving the standard for determining whether workers are properly classified as independent contractors under the National Labor Relations Act. … Continue Reading

The First Domino to Fall? NLRB Solicits Public Input on Test for Determining Appropriate Bargaining Units

By Todd Dawson and Christian White on December 13, 2021 Posted in NLRB

In a somewhat ominous sign of things to come, the National Labor Relations Board (NLRB or the Board) has invited briefing on whether to change the test for determining whether a union has proposed an appropriate employee voting group (i.e., a “voting unit”) in petitioning for an NLRB representation election. The current standard that applies … Continue Reading

Money, Money, Money Is Not Always Funny or Sunny – Just Take a Look at the NLRB’s Substantial Increases in Monetary Remedies and Job Reinstatements

By Christian White and Todd Dawson on November 29, 2021 Posted in NLRB

On Nov. 5, 2021, the iconic Swedish band ABBA released its first album of new material in 40 years, and, amazingly, it is their highest-charting album ever on the Billboard 200. (If for some reason you are not familiar with ABBA – and we are not really sure how that could possibly be – check … Continue Reading

Spoiler Alert: The NLRB Is Poised to Dramatically Rework Its Joint Employer Standard

By Christian White and Todd Dawson on November 11, 2021 Posted in Joint employer standard, NLRA, NLRB

When I was a kid, it was a thrill (and, yes, it still is today) to watch all the movie trailers before the main feature. Unfortunately, some of those trailers actually spoiled the movie they were previewing (thinking of you, Kingsman: The Golden Circle). Well, the National Labor Relations Board (NLRB or the Board) has … Continue Reading

What Are We Supposed To Do Now? Recommended Next Steps for Unionized Employers Regarding OSHA’s COVID-19 Vaccination/Testing Rule

By Christian White and Todd Dawson on November 9, 2021 Posted in Biden Administration, OSHA

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) released its emergency temporary standard (ETS) on COVID-19 vaccinations. In summary, the ETS provides that employers with at least 100 employees must either mandate COVID-19 vaccinations of their workforces or require unvaccinated employees to wear face coverings and undergo weekly COVID-19 testing. Employers covered by the … Continue Reading

Through the Looking Glass, Part 2: What Does ‘Protected Concerted Activity’ Look Like?

By Christian White and Todd Dawson on November 4, 2021 Posted in NLRA, NLRB, Wage and Hour

As explained in a prior post, the National Labor Relations Act (NLRA) gives employees the right to engage in “protected concerted activity” when such activity is intended to improve their wages, benefits and working conditions. We also discussed NLRB General Counsel Jennifer Abruzzo’s intention to expand what falls within the definition of “working conditions” in … Continue Reading

The Continuing Adventures of the Congressional Reconciliation Package: NLRA Civil Penalties Trimmed in Latest Version of Legislation

By Todd Dawson and Christian White on October 29, 2021 Posted in NLRA

For a bit of a pleasant change, there’s some positive labor relations news for employers on the legislative front. But it’s not exactly rainbows and unicorns. As we explained previously, Democrats in the U.S. House of Representatives included provisions in their original reconciliation spending package that would have amended the National Labor Relations Act to … Continue Reading

Hands Off My Tech: Employers May Not Restrict Employee Communications Transmitted via Third-Party Smartphone Applications

By Todd Dawson and Christian White on October 26, 2021 Posted in NLRB

The National Labor Relations Board’s (NLRB) Division of Advice (Advice), which provides guidance to the NRLB’s regional offices regarding difficult and novel issues, recently released an internal memo concerning employee online communications that should be cause for concern among employers. Specifically, Advice found that an employee engaged in protected activity by discussing COVID-19 safety concerns … Continue Reading

Through The Looking Glass: The NLRB Seeks To Expand The Concept Of ‘Protected Concerted Activity’ Beyond Its Imaginable Limits

By Christian White and Todd Dawson on October 14, 2021 Posted in NLRA, NLRB, Wage and Hour

Since the passage of the National Labor Relations Act (NLRA) in 1936, employees have possessed a right to engage in “protected concerted activity,” meaning they have the right to discuss workplace concerns and take action for mutual aid or protection. Indeed, the National Labor Relations Board’s (NLRB or the Board) website explicitly informs employees that … Continue Reading

NLRB Given a ‘Mulligan’ in Offensive Speech Case

By Christian White and Todd Dawson on October 1, 2021 Posted in NLRB

The Trump National Labor Relations Board’s (NLRB or Board) new standard for cases where an employee is disciplined for using offensive speech in the course of engaging in protected labor activity may have a very short lifespan. The standard was originally announced in July 2020 in a case involving General Motors and is therefore often … Continue Reading

‘Please Speak into My Lapel’: D.C. Circuit Finds That NLRB Properly Considered Secret Recording That Arguably Violated State Law

By Todd Dawson and Christian White on September 28, 2021 Posted in NLRB

The U.S. Court of Appeals for the District of Columbia Circuit recently held that the National Labor Relations Board (NLRB or Board) properly considered a secret recording of an employer meeting with employees in finding that the employer committed multiple unfair labor practices. The employer meeting followed a strike during which the striking employees loudly … Continue Reading

A Hard Rain About to Fall? House Committee Details Proposed Changes to Federal Labor Law

By Todd Dawson and Christian White on September 14, 2021 Posted in Biden Administration, NLRB

If you hear a clinking noise in the distance, that may be the sound of organized labor hoisting its mugs to toast the Democratic majority in Congress. The House of Representatives’ Committee on Education and Labor announced a number of proposed changes last week to the National Labor Relations Act, which House and Senate Democrats … Continue Reading

BREAKING: OSHA’s Vaccine Mandate and Unionized Employer Bargaining Obligations

By Todd Dawson and Christian White on September 10, 2021 Posted in Biden Administration, OSHA

President Biden has just announced that he is tasking OSHA with implementing a new emergency rule mandating that employers with at least 100 employees either require their workforce to be vaccinated or require unvaccinated employees to produce a negative COVID-19 test every week. Details are still very scant, but it does not appear that the … Continue Reading