Supreme Court Delays Oral Argument in Class Action Waiver Cases

The United States Supreme Court has notified the parties in National Labor Relations Board v. Murphy Oil USA, Case No. 16-307; Epic Systems Corp. v. Lewis, Case No. 16-285; and Ernst & Young LLP v. Morris, Case No. 16-300 that oral argument will take place in October 2017.  It is expected that the vacancy on the Court will be filled by then.  Jackson Lewis has represented Murphy Oil USA throughout these proceedings. For more on this development, click here.

NLRB GC Instructs Regions to Hold on Class Action Waiver Cases Until Supreme Court Rules

The General Counsel of the National Labor Relations Board has instructed Regional Offices to hold in abeyance cases involving mandatory arbitration agreements with opt in or opt out clauses. Regions must do the same in cases where an employer argues that the class action waiver in its arbitration agreement is different than the one at issue in Murphy Oil. Regions are to evaluate cases independently.

The GC’s memorandum results from the United States Supreme Court’s recent grant of certiorari in National Labor Relations Board v. Murphy Oil USA (No. 16-307), Epic Systems Corp. v. Lewis (No. 16-285), and Ernst & Young LLP v. Morris (No. 16-300). (Jackson Lewis is co-counsel in the Murphy Oil case).  The cases focus on the common issue of whether arbitration agreements that prevent employees from pursuing work-related claims on a collective or class basis violate the National Labor Relations Act.

In cases covered by the Memorandum, the GC directed Regions to enter informal settlement agreements if the cases have merit and conditioned on the Supreme Court finding class action waivers in arbitration agreements to be unlawful. Recognizing cases may contain multiple issues, Regions are instructed to enter similar informal settlement agreements regarding the class action waiver issue. If the parties are unable to settle the alternative issues in the case, those issues should move forward if the Region finds they have merit.

The Supreme Court’s decision will loom large for employers. President Trump’s appointment of a Justice to fill the seat vacated by Justice Antonin Scalia, who passed away last year, may be the deciding vote in the cases’ outcomes. (See our article on the nominee, President Trump Nominates Neil Gorsuch to U.S. Supreme Court.)




NLRB General Counsel Concludes Division I Scholarship Football Players are Employees under Labor Law

Scholarship football players in Division I FBS private sector colleges and universities are employees under the National Labor Relations Act, National Labor Relations Board General Counsel Richard F. Griffin has concluded. Accordingly, he explained, the players have all of the rights and protections available to employees under the Act. Click here to read the full article.

DOL Chief Nominee Puzder’s Hearing Postponed Again

For the fourth time, Secretary of Labor nominee Andrew Puzder’s hearing before the Senate Health, Education, Labor and Pensions (HELP) Committee has been postponed, this time indefinitely, according to Politico.  The Wall Street Journal reports the postponement  is the result of “persistent questions about his ethics and financial paperwork” and that the hearing will not be rescheduled until the HELP Committee receives Puzder’s filing with the Office of Government Ethics.

The hearing was scheduled to take place on February 7, after having been postponed from January 17 and February 2.

Public Sector Employees in Three States Sue to Nix Fair Share Fees

Four Pennsylvania school teachers, two Santa Clara Valley Medical Center pharmacists, and three New York school workers have filed separate suits challenging the constitutionality of state requirements permitting the unions that represent them to require them, if they do not join and pay dues, to pay a “fair share fee” (similar in amount to the dues paid by union members) toward their union representation.

In Abood v. Detroit Board of Educ., 431 U.S. 209 (1977), the Supreme Court held that fair share fees were constitutional and that employees could be compelled to pay them as a condition of employment “insofar as [they] are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Pennsylvania, California, and New York public sector employees (represented by the National Right to Work Legal Defense Foundation) seek to overturn that precedent and have the fees outlawed. They argue that the fee requirements violate their First Amendment rights.

In Friedrichs v. California Teachers Assoc., 136 S. Ct. 1083 (2016), the Court had an opportunity to reconsider its decision in Abood. The plaintiffs had argued that their First Amendment rights were violated when the government, through a collective bargaining agreement, required the employees to pay a fair share payment to a union whose views they did not necessarily wholly share. However, following the death of Justice Antonin Scalia, who was widely expected to cast the fifth vote against the California fair share fee requirement, the Court split 4-4. (The tie vote resulted in an affirmance of the lower court decision upholding the fees.)

President Donald Trump is expected to announce his choice to fill the Supreme Court vacancy on February 2. If, as anticipated, he nominates a conservative jurist who is confirmed by the Senate, the likelihood will increase greatly that Abood will be overturned and fair share fees will be ruled unconstitutional.









Puzder Hearing Delayed to February 7

The confirmation hearing for Secretary of Labor nominee Andrew Puzder before the Senate Health, Education, Labor, and Pensions (HELP) Committee has been rescheduled from February 2 to February 7. No reason has been announced.

Senator Patty Murray (D. WA) released a letter in which she asked Puzder “when the Health, Education, Labor, and Pensions (HELP) Committee might expect to see the required Committee paperwork in advance of [his] hearing.” She also “reiterate[d] [her] request that all of President Trump’s Cabinet nominees provide three years of tax returns as part of the Senate vetting process.”

Miscimarra Named Acting NLRB Chairman, Replacing Pearce

Republican Philip A. Miscimarra has been appointed acting chairman of the National Labor Relations Board  by President Donald J. Trump, according to Law360.

Miscimarra replaces Mark Gaston Pearce, whose term expires on August 27, 2018. Miscimarra’s term as an NLRB member ends in December 2017.

Miscimarra said, “It is an honor to be named NLRB Acting Chairman by the President.  I remain committed to the task that Congress has assigned to the Board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.”

Trump is expected to nominate Republicans to fill the two current vacancies on the five-member Board, creating a 3-2 Republican majority.

NLRB Joint Employer Case Will Be Heard by Federal Appeals Court on March 9

Oral argument on Browning-Ferris Industries of California, Inc.’s appeal seeking to overturn the National Labor Relations Board’s  landmark joint employer decision, Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), has been scheduled for March 9, 2017, by the U.S.  Court of Appeals for the District of Columbia Circuit.

The Browning-Ferris decision established a new, union-friendly standard for determining joint employer status under the NLRA. (For details, see Labor Board Sets New Standard for Determining Joint Employer Status.)

Under the Board’s former standard, a joint employer relationship existed only where “two separate entities share or codetermine those matters governing the essential terms and conditions of employment.” In particular, an employer had to “meaningfully affect[] matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.” In Browning-Ferris, the Board transformed the joint employer standard into a test that, in relevant part, considers whether the potential joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful bargaining. “Control” under the new standard is defined much broader than under the old one; it can be direct, indirect, or even a reserved right, whether or not that right is ever exercised. Applying this new standard, the Board found BFI was a joint employer with temporary service agency Leadpointe of the employees BFI subcontracted for, and certified the Teamsters as the bargaining representative of the petitioned-for unit.

The composition of the Court of Appeals three-judge panel will be announced days prior to the date of oral argument, by February 9, 2017, on the Court’s website ( Stay tuned for further updates on the NLRB’s new joint employer standard and for an analysis of the oral argument.

Trump Reaches Out to Labor Unions

President Donald J. Trump met on January 23 with several union leaders and employees in the construction and sheet metal industries, according to Politico. Unions represented at the meeting include the United Brotherhood of Carpenters, North America’s Building Trades Unions, Laborers’ International Union of North America, United Association (which represents plumbers, fitters, welders, and service techs), and Sheet Metal, Air, Rail, Transportation.

Teamsters General President James P. Hoffa and AFL-CIO President Richard Trumka were invited, but did not attend. Both met with the President during the transition. United Steelworkers union spokesman Wayne Ranick said the union was not invited.

According to Business Insider, White House Press Secretary Sean Spicer said the meeting was arranged because “the president has received tremendous support from working men and women and he’s dedicated to growing and deepening their support.” U.S. News reported Trump told the assembled that he is redoing the nation’s trade deals (including the intention to withdraw from the Trans-Pacific Partnership) “to put a lot of people back to work.”

Edward Hugler Named Acting Secretary of Labor

According to an announcement on the Department of Labor’s website, Edward Hugler is Acting Secretary of Labor.

Hearings before the Senate Health, Education, Labor & Pensions Committee on President Donald Trump’s nomination of Andrew Puzder to be Secretary of Labor will not take place until February 2.

Hugler has been with the Labor Department for 39 years and is the deputy assistant secretary for operations in the Office of the Assistant Secretary for Administration and Management. In this role, he provides day-to-day management to 800 employees in the national office and six regional offices. He has overall leadership responsibility for policy and operations encompassing business operations and procurement, information technology, human resources management, civil rights, emergency management, security, administrative services, and employee safety and health.