FLS Labor & Employment Society

Latest Articles

By: Andrew L. Oringer I have been asked to write about issues facing US lawyers in the area of ERISA (the Employee Retirement Income Security Act 1974) and executive compensation (for convenience, I’ll consider the executive compensation practice to be a part of the ERISA practice, in references below). I think the keyword here is ‘change’ – it’s clear to me that change is the hallmark of my area of expertise. Sometimes, ERISA-related change springs…
By: David J. Pryzbylski Disciplining an employee for social media posts criticizing a company can be a tricky area to navigate from a legal standpoint. The National Labor Relations Board (NLRB) has been aggressive in terms of ordering the reinstatement of workers terminated for posting comments online regarding their terms and conditions of employment, including comments that are critical of their employers. A recent advice memo from the agency shows this remains an area where companies are…
By Paul Salvatore, Steven Porzio, David Bayer and Laura Franks Colleges and universities should take note of the Court of Appeals for the D.C. Circuit’s recent decision in University of Southern California v. National Labor Relations Board, Case No. 17-1149 (D.C. Cir. Mar. 12, 2019) addressing whether non-tenure track faculty at universities are “employees” under the National Labor Relations Act (“NLRA”), giving them the right to form a union, or whether they are “managers” and thus exempt…
On March 7, 2019, the Department of Labor announced a proposed rule that would raise the income threshold for overtime pay.[1] The Department maintains that under its proposal a million more Americans would be eligible for overtime pay.[2] Under current law, employees with a salary below $455 per week ($23,660 annually) must be paid overtime if they work more than 40 hours per week.[3] Workers making at least this salary level may…
On March 1,, 2019, in United Nurses & Allied Professionals (Kent Hospital), the National Labor Relations Board set a new standard for non-member objectors often referred to as “Beck Objectors.”[1]  The Board held that unions can no longer compel objectors to pay a union’s lobbying fees. The Board based its decision on Communications Workers of America v. Beck and Ellis v. Railway Clerks.[2]  In Beck, the Supreme Court held that an…
On February 22, 2019, the NLRB General Counsel issued a memo recommending that the Board overturn Kroger and require unions to apprise employees of their savings in their initial Beck notice.[1] In Communications Workers of America v. Beck, the Supreme Court held that when a union seeks to collect dues and fees from employees it must inform them of their right to remain non-members and that non-members have the rights to: (1) object to…
Article By: Mark A. Carter Jacqueline N. Rau On January 25, 2019, the National Labor Relations Board (Board) returned to the common-law agency test for determining whether workers qualified as independent contractors. SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019) The decision expressly overrules the Board’s decision in FedEx Home Delivery, 361 NLRB 610 (2014), enf. denied 849 F.3d 1123 (D.C. Cir. 2017). The Board specifically found the FedEx decision impermissibly “shifted the independent contractor analysis, for implicit policy-based…
Avi Yankelewitz – Fordham University School of Law In the wake of the Supreme Court decision in Janus v. AFSCME, unions must represent all workers in the bargaining unit, even those who do not pay dues.  This paper discusses the possibility that this requirement may be subject to a First Amendment challenge based on the Compelled Speech doctrine. Part I of this paper introduces the reader to the various legal issues arising post-Janus. Part II…
In the wake of the Supreme Court ruling in Janus v. AFSCME, unions and their supporters in the legislature have sought a way around the decision. Rep. Paul Holvey of Oregon has introduced House Bill 2643,[1] which aims to avoid the free speech issue raised in Janus by allowing the state to assess fees from public employers. In Janus, the issue was that the non-members were compelled to pay. Under this bill, employees…
Update: An email response from Maxford Nelsen Director of  Labor Policy | Freedom Foundation “First, it’s still a bit too early to conclude that public-sector union membership has not declined in the wake of the Janus decision. In many cases, the data is either unavailable or still very preliminary. Unions made similar claims in the months after the U.S. Supreme Court’s 2014 decision in Harris v. Quinn, which made union dues payment optional for “partial-public employees.” Four years…