Yesterday, the California Supreme Court issued its long-awaited decision in Iskanian v. CLS Transp. Los Angeles, LLC, upholding class action waivers in employment arbitration agreements. This means that the U.S. Supreme Court’s 2011 opinion in AT&T Mobility LLC v. Concepcion is to be given full force and effect in the employment setting in California. That said, however, Iskanian distinguishes the right of an employee

On January 17, 2014, the National Labor Relations Board Judge Lisa D. Thompson concluded that an agreement that did not prohibit class or collective action still violated Section 8(a)(1) of the National Labor Relations Act because the Agreement “interfere[d], restrain[ed], or coerce[d]” plaintiff and other similarly situated employees’ “substantive rights to file classwide litigation.”  This ruling stems from Cunningham v. Leslie’s Poolmart, Inc., an

In the wake of a challenge by the National Association of Manufacturers, the National Labor Relations Board (“NLRB”) has again agreed to postpone the effective date of a controversial regulation that would require most employers to post a notice informing employees about their rights under the National Labor Relations Act. 

As we reported previously, in December 2007 the National Labor Relations Board issued a decision relating to company e-mail policies in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (2007), holding that an employer (i) may restrict the use of its computer systems to business related uses only, and (ii) could distinguish between personal and organizational solicitation in enforcing its no-solicitation policy.

Earlier this week, in The Register-Guard v. NLRB, No. 07-1528 (D.C. Cir July 7, 2009), the D.C. Circuit issued its decision reversing, in part, the Board’s decision.

Neither party requested review of (and, thus, the court did not address) the Board’s general holding that allowed restricting the use of company e-mail to business purposes.  The Court also chose not to address the Board’s position on distinguishing between the types of solicitation. Instead, it held that based on the facts of this particular case — where the policy in question did not actually make a distinction between types of solicitation — the employer could not discipline an employee for a union-related solicitation. As discussed below, the decision highlights the risks to employers who act based on the current Board law in the absence of a clear written policy that makes an explicit distinction between types of solicitation. Moreover, even if employers have such a policy now, the future Obama Board is likely to modify the current law.

On May 1, 2009, we reported that the Court of Appeals for the District of Columbia Circuit had just ruled that the National Labor Relations Board, which has functioned with only two of its five members since January 1, 2008, had lost its quorum and, as a result, had no statutory authority to issue any of the nearly 400 decisions that were released during the preceding 16-month period. Laurel Baye Healthcare of Lake Lanier, Inc., 2009 U.S. App. LEXIS 9419 (D.C. Cir. 2009).

On May 18, the NLRB issued a press release announcing that, notwithstanding the D.C. Circuit’s decision in Laurel Baye Healthcare, Chairman Liebman and Member Schaumber would continue to issue decisions in unfair labor practice and representation cases. The Agency emphasized that two other Courts of Appeal, the First and Seventh Circuits, had upheld the two-member Board’s authority to decide cases, and that the issue currently is pending review in seven other circuit courts.

According to Court of Appeals for D.C. Circuit Earlier today, the Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board, which has functioned with only two of its five members since January 1, 2008, is “not properly constituted” and has no decision-making authority. Laurel Baye Healthcare of Lake Lanier, Inc. v. N.L.R.B., No. 08-1162 (D.C. Cir., 5/1/09). At the same time, in another unfair labor practice case raising the identical issue, the Seventh Circuit agreed to enforce a Board Decision and Order issued by the two-member Board. New Process Steel L.P. v. N.L.R.B., No. 08-3517, et al. (7th Cir., 5/1/09).

As a result of term expirations and the election-year failure to make appointments to fill the three vacancies on the Board, an NLRB reduced to two members — Chairman Wilma Liebman and Member Peter Schaumber — has issued hundreds of decisions over the course of the last 16 months in both unfair labor practice and representation cases. Today’s ruling by the District of Columbia Circuit calls the validity of those decisions into question.

On April 24, 2009, President Obama announced his intention to nominate Craig Becker and Mark Gaston Pearce to fill two of the three vacant positions on National Labor Relations Board.

The NLRB is comprised of five members appointed by the President who are subject to approval by the Senate Health, Education, Labor and Pensions Committee and confirmation by the full Senate. Board Members are appointed for a term of five years. The two current Board Members are Wilma B. Liebman (Democrat), who on January 20, 2009 was designated Chairman by President Obama, and Peter C. Schaumber (Republican), whose term expires on August 27, 2010.

Proskauer Prevails As The Court Holds That Collectively Bargained Agreements for The Arbitration of Statutory Discrimination Claims are Enforceable

On April 1, 2009, the United States Supreme Court, in a 5-4 decision, ruled in favor of Proskauer Rose’s client 14 Penn Plaza LLC, holding that a collective bargaining agreement (“CBA”) that clearly and unmistakably requires union members to arbitrate Age Discrimination in Employment Act (“ADEA”) claims is enforceable as a matter of federal law. The Court’s decision validates the right of an employer and a union to negotiate about the way disputes can be resolved, even when those disputes involve individual statutory rights. Accordingly, 14 Penn Plaza LLC. v. Pyett, is significant to all employers who have collective bargaining relationships.

Proskauer negotiated the CBA at issue on behalf of the Realty Advisory Board on Labor Relations, Inc., (“RAB”) and handled this litigation on behalf of 14 Penn Plaza — from the district court through argument of the matter before the Supreme Court by Paul Salvatore, co-chair of Proskauer’s Labor and Employment Law Department.

IBM Corp., 341 NLRB No. 148 (June 9, 2004)

In this far-reaching decision, the National Labor Relations Board overruled its own recent decision in Epilepsy Found. of N.E. Ohio, 331 NLRB 676 (2000), and held that employees who are not represented by a union are not entitled to have a coworker present during investigatory interviews. In this decision, the Board held that IBM