The National Labor Relations Board (“NLRB”) is presently wrestling with a particularly important legal issue that has nothing to do with union elections or unfair labor practices. The matter facing the NLRB is much more rudimentary than that – when should NLRB members be recused based upon a conflict of interest. Not to belabor the point (pun intended), but it is critical that NLRB members be able to rule on legal issues presented to them. If matters taken to the NLRB are frequently subject of conflict concerns, the system slows and the wheels of justice do not turn.
Public Employees Have The Right To Refrain From Union Membership and Compelled Union Dues
In a 5-4 ruling split evenly along party lines, the United States Supreme Court bolstered the right of public sector employees to abstain from union membership and compulsory dues payment. The ruling in Janus v. AFSCME provides that public sector unions cannot require employees to pay dues and fees associated with the negotiation of labor agreements and administration of grievances under such agreements, although those employees will be covered by the bargaining agreement. Public sector employers have been a final stronghold of the American labor movement. While only 6.5% of private sector employees are unionized, unionization of public sector employees is currently 34.4%. To put public sector’s union activities into context, of the $64.6 million spent by these unions during the 2016 election cycle, 90% of those funds went to Democratic candidates.
On February 26, 2018, the National Labor Relations Board (“NLRB”) issued an Order vacating its decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017) (“Hy-Brand”). The decision to vacate the Hy-Brand ruling came on the heels of the determination by the NLRB’s Designated Agency Ethics Official with the Office of the Inspector General that NLRB Member William Emanuel is, and should have been, disqualified from participating in the Hy-Brand proceeding.
The joint employer standard, which is used to determine the extent to which one employer may become liable for obligations of another, has long been a very politically-charged issue. It therefore comes as no surprise that less than one year into the Trump administration, the National Labor Relations Board (“NLRB”) has issued a ruling that in effect reverses a controversial decision of the Obama Board that made it easier to prove the existence of a “joint employer” relationship. In a 3-2 ruling, the NLRB overruled the Board’s 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“Browning-Ferris”), and returned to the pre–Browning Ferris standard that governed joint employer liability.
As employment attorneys, we are often asked by employers, “How can I protect my company from employees leaving with critical information or being poached by a competitor?” One way that employers can protect themselves is to prepare reasonable non-compete agreements that have the effect of deterring competitors and, likewise, encouraging retention amongst the workforce. There are, however, pitfalls which must be considered by employers before the execution of these non-compete agreements. Generally speaking, West Virginia courts will accept and enforce non-compete agreements that (1) are no more restrictive than required for the protection of the employer; (2) do not impose an undue hardship on the employee; and, (3) are not injurious to the public.
On May 13, 2016, the Department of Labor (“DOL”) and the Department of Education (“DOE”) issued a joint directive to school districts nationwide titled the “Dear Colleague Letter on Transgender Students.” The correspondence “summarizes a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations.” The letter makes clear that “[a]s a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.” (Emphasis added). While the information applies directly, through Title IX, to school districts, private employers on a much broader scale must also be cognizant of the new interpretation of “sex” discrimination.