Employers should take note of the following developments in labor law.  The National Labor Relations Board vacated a key joint-employer decision and the United States Supreme Court is considering two cases which will impact labor law and union organizing.

Oops! Board Member’s Private Practice History Leads to Return of Obama-Era Joint-Employer Standard

In a previous post, we reported that the Board overturned the Obama-era Browning-Ferris decision and restored the employer-friendly “direct and immediate” control test for establishing joint-employer status when it issued the ­Hy-Brand decision.  On February 26, 2018, however, the Board vacated that decision.

The Board vacated it because current Board Member William Emmanuel’s former law firm represented the employer in Browning-Ferris when the case was before the Board and before his appointment.  Critics of the Hy-Brand decision argued it was improper because Emmanuel’s former firm participated in a decision he voted to overturn once he was appointed.  The NLRB’s Inspector General sent the Board Members a memorandum which concluded that Emanuel should not have participated in the Hy-Brand decision and recommended that the Board consult with agency ethics officials to determine whether it should vacate the decision.  The Board decided to vacate it.

This means that the Browning-Ferris “indirect control” standard has been resurrected, at least for now.  The Board must now consider the joint employer standard in a new case where there are no conflicts of interest.

We also reported that the “Save Local Business Act” is pending before Congress.  This Act would establish the “direct control” standard for the National Labor Relations Act and Fair Labor Standards Act.  The Board’s decision to vacate the Hy-Brand decision may lead to action on this bill.  We will keep you updated on any developments.

U.S. Supreme Court Considers Mandatory Arbitration and Agency Fees

The Supreme Court is currently considering two cases that will have a large impact on labor arbitrations and union organizing.

The first is titled National Labor Relations Board v. Murphy Oil.  This is a trio of cases which consider whether class and collective action waiver provisions are lawful in arbitration agreements.  The Board’s position is that requiring employees to give up their right to arbitrate class or collective action claims is a violation of the employees’ rights to engage in concerted activity.  The Supreme Court heard argument on this case on October 2, 2017, and a decision will likely be released soon.

This decision will provide insight on the current Supreme Court’s views on arbitration, employees and the National Labor Relations Act.

The second is Janus v. American Federation of State, County and Municipal Employees.  In this case, the Supreme Court is considering whether the requirement that public-sector employees be required to pay union dues as a condition of employment regardless of union membership is constitutional.  Currently, public-sector employees are required to pay union dues and these funds are used for, among other things, union organizing and campaigning.  The Supreme Court will be deciding whether this requirement violates the public-sector employees’ First Amendment rights because many of the employees are not union members or union supporters but are required to contribute to union funding.

This case will provide insight to the current Court’s views on unions and union organizing.  The case was heard on February 27, 2018.  We will keep you updated on the result.