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Dress Code Policies Reconsidered in the Pandemic

Employers are contending with how to respond to telecommuters dressing down during the pandemic. Companies also are considering how to ensure dress codes don't unlawfully discriminate or violate National Labor Relations Act (NLRA) rights. In a recent article by the Society of Human Resource Management, McDermott Employment associate Philip Shecter advises employers to be mindful of these rights, which may arise in the context of attire in favor of social justice movements. Access the article.

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What to Do When Scared Workers Do Not Respond to Work Due to COVID-19

Some essential workers are refusing to go to work out of fear of contracting COVID-19. Their employers must weigh the employees’ legal rights and understandable health concerns with the organizations’ business needs. It can be a tough balancing act. In a recent article, McDermott Partner Pankit Doshi said employers may relax documentation requirements due to the difficulty some employees could have obtaining access to medical providers during the pandemic and to encourage ill employees to stay away from work. Access the article.

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Ninth Circuit Answers Some Questions About Arbitration of ERISA Claims

In two opinions—one published and one unpublished—the Ninth Circuit overturned prior precedent and held that a Plan amendment requiring arbitration meant that an individual had to arbitrate, on an individual basis, purported class claims alleging imprudent and disloyal management of 401(k) investments. This decision, although unpublished, provides support for plans wishing to add binding arbitration provisions that apply to ERISA 502(a)(2) claims. Access the full article.

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ALJ Finds Employee’s Facebook Comments Unrelated to Working Conditions are not Protected Under the NLRA

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap Two weeks ago, we wrote about a decision from an Administrative Law Judge (ALJ) (available here) finding that the National Labor Relations Act (NLRA) protected an employee’s Facebook comments made about his employer.  Last week, an ALJ issued another decision involving social media and the NLRA, finding that an employee had engaged in some protected activity, but that he was ultimately fired for other, unprotected activity.  In Karl Knauz Motors, a former salesperson claimed that he was fired after he posted pictures and comments on Facebook criticizing his employer’s choice of serving hot dogs at a sales event introducing the new BMW 5-series.  The National Labor Relations Board (NLRB) recently issued a report related to social media (found here), in which it noted the employee’s posts in the BMW case were protected activity because they related to the terms and conditions of employment. While the...

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NLRB Releases Poster For Posting By November 14, 2011

by Heather Egan Sussman, Sabrina E. Dunlap and Stephen D. Erf As an update to our previous blog entry, the National Labor Relations Board (NLRB) has released the private employer notice of rights under the National Labor Relations Act (NLRA).  As of November 14, 2011, covered employers must post the 11-by-17-inch notice in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.  The NLRB states that employers also should publish the notice on an internal or external website if other personnel policies or workplace notices are posted there. The NLRB has also posted Frequently Asked Questions on the posting requirement, which covers topics such as when employers are covered by the NLRA, and what to do if a substantial share of the workplace speaks a language other than English.

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