It is lawful to discipline and even discharge an employee for making inappropriate or offensive remarks in the workplace. Indeed, current anti-harassment and anti-bullying laws may require an employer to take adverse action against a worker for their use of such “bad” language. However, when those remarks are made while an employee is engaged in union or other protected concerted activity (PCA), then, depending upon the employee’s remarks and the context in which they are…

In the organizing context, the scope of a potential bargaining unit is everything-it determines which employees’ votes will count towards establishing a union’s putative majority in a secret ballot election, and determines the unit within which bargaining must take place if a union prevails in that election. Unsurprisingly, then, unit scope is one of the most hotly contested issues in election cases.…

Setting clear and reasonable standards for taking access to an employer’s private property is high on the National Labor Relations Board’s agenda. Not only is the Board talking about issuing formal rules in this area, but the Agency is cranking out new access decisions left and right, the most recent being its recent decision in Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, dated September 6, 2019 (Kroger). The issue presented there was…

Does an employer who genuinely believes that its workers are independent contractors and tells them that they are contractors and not employees, only to later find out that it was wrong, violate Section 8(a)(1) of the National Labor Relations Act (NLRA or Act)? Unions and workers’ advocates argue that such erroneous classifications/announcements should be illegal because when an employer misclassifies statutorily covered employees, they effectively convey the message to the employees that they have no…

Employers wishing to implement class action waivers in response to class claims and discipline employees who refuse to sign them just got some very good news from the National Labor Relations Board (NLRB or Board) in Cordua Restaurants, Inc., 368 NLRB No. 43. By way of background, in Epic Systems Corp v. Lewis, 138 S. Ct. 1612 (2018) the SCOTUS held that agreements containing class and collective action waivers and requiring that employment…