Recently in Employment Law Category

In January, the D.C. Circuit gave the proverbial bench-slap to President Barack Obama and the National Labor Relations Board, holding that Obama’s appointments to the NLRB during a Senate recess were unconstitutional. Earlier this week, the D.C. Circuit did it again, invalidating a rule promulgated by the NLRB that required employers to post notices detailing workers’ rights regarding unions.

The court issued an injunction in April 2012 after two lower courts came to differing conclusions about whether the rules exceeded the board’s authority. The court noted in its opinion that the Fourth Circuit currently has a pending South Carolina case regarding the rule.

Some hostile work environment claims are a little iffy. They are filled with suggestion or innuendo. The summary judgment phase in such claims might be a close call.

Placide Ayissi-Etoh's hostile work environment claim against Fannie Mae is not one of those claims, according to the D.C. Circuit Court of Appeals.

The D.C. Circuit wasn’t fooled, even if the initial labor board was.

Ampersand Publishing acquired the Santa Barbara News-Press in 2000. Over the next four years, a shift in editorial tone, meant to quash the reporters’ alleged bias that was seeping into their writings, led to a full-on revolt. By 2006, the mutiny was on. Reporters sought a return to “journalistic integrity.” Ampersand’s owners sought to run their business as they saw fit.

A number of resignations and protests ensued, including an event where approximately twenty employees duct taped their mouths shut. Unfortunately for Ampersand, the tape didn’t stick and more protests followed, including a campaign to convince subscribers to cancel their subscriptions in protest.

Malla Pollack, a lawyer and resident of Kentucky, wants work for the Administrative Office of the U.S. Courts in Washington, D.C. The Administrative Office rejected her application because she doesn't live or work in the Washington metropolitan area.

So she sued.

Considering that Pollack just wiped the floor with the government's lawyers in the D.C. Circuit Court of Appeals, maybe they should consider hiring her.

Employers are required to file a W-2 for every paid employee. The W-2 lists the identities of the employer and the employee, the amount that an employee has been paid, and the taxes that have been withheld by the employer. The Social Security Administration (SSA) processes Forms W-2 for the IRS. On occasion, the employee's name and Social Security number as listed on a Form W-2 do not match the SSA's database. When that happens to a sufficient number of employees, the SSA sends the employer a "no-match" letter.

In 2006, Judicial Watch filed a Freedom of Information Act (FOIA) request with the SSA, seeking the names of the 100 U.S. employers that generated the most no-matches from 2001 through 2006. The agency declined to produce such records, concluding that they were exempt under FOIA Exemption 3. The District Court agreed with the agency, and the D.C. Circuit Court of Appeals affirmed that decision.

When Hostess was unable to reach a labor agreement with union leaders, the company found itself in bankruptcy court.

When Erie Brush & Manufacturing failed to reach an agreement with its union reps, it found itself before the National Labor Relations Board on unfair labor practice charges.

An NLRB Administrative Law Judge Board concluded that Erie had violated the National Labor Relations Act by refusing to bargain with the Union over an approximately six-week period in 2006. The ALJ held that this refusal to bargain tainted a union decertification petition, so that Erie's withdrawal of recognition of the Union also violated the Act.

This week, the D.C. Circuit Court of Appeals reversed that decision.

There are plenty of business owners who dislike dealing with unions, but bigwigs are limited in what actions they can take to dissolve their employees' unions.

For example: Cornering staff members and asking them to sign a union decertification petition? Not okay.

The D.C. Circuit Court of Appeals ruled on favor of the National Labor Relations Board, finding that Chevron Mining Inc. violated the National Labor Relations Act when it amended a bonus plan to penalize employees for work stoppages.

Chevron Mining’s collective bargaining agreement had provisions for “memorial periods,” which were essentially unpaid work stoppages. Under the collective bargaining agreement, strikes were prohibited. As a result, the union called six “memorial period” work stoppages at one mine in 2004 in an effort to pressure the employer.

On April 17, the D.C. Circuit Court of Appeals issued an injunction against the National Labor Relations Board, preventing it from implementing its new posting rule.

The National Association of Manufacturers (NAM) and the Coalition for a Democratic Workplace requested the injunction. Their legal challenge to the posting requirements was dismissed last month by a district court.

Here’s a case out of the D.C. Circuit Court of Appeals involving union activity and handbill-passing by non-employees.

It’s settled law that a property owner can’t bar its employees from distributing union-related handbills. It’s also well settled that the same law does not apply to non-employees.

But here’s where it gets tricky. What if an employee of an on-site vendor or on-site contractor wants to hand out handbills? Do the same rules apply? After all, the employee is not an employee of the property owner.