Yelp’s recent advertising campaign tells would-be users in search of businesses and services, “We know just the place.” Yelp provides an online forum where users can utilize star-ratings and comments to share their experiences with fellow consumers. Recently, the site has evolved into a venue for consumers to mercilessly complain about their subjectively mediocre experiences. The complaints can sometimes escalate to the point where fellow consumers won’t darken a business’s doorstep based upon its Yelp reviews.
The use of independent contractors is a growing trend in the American economy, and many believe the trend is here to stay. Independent contractors come in a variety of shapes and sizes. Companies like Uber rely almost exclusively on independent contractors, and there has been significant increase in the use of independent contractors for a variety of duties (in nearly all industries).
The Third Circuit Court of Appeals recently held that actions taken by the National Labor Relations Board (“NLRB”), including its Regional Directors, during a time when it did not maintain a constitutionally valid quorum are nevertheless binding and have full legal force. In Advanced Disposal Servs. E., Inc. v. NLRB, the NLRB found that an employer violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (“NLRA”) when it refused to collectively bargain with a newly-certified bargaining unit. The NLRB issued an order to enforce the election, and the employer appealed.
On April 19, 2016, the District of Columbia Circuit, held that Orchestra musicians were employees, not independent contractors. Lancaster Symphony Orchestra v NLRB. The National Labor Relations Act (“NLRA”) guarantees employees, but not independent contractors, the right to join a union. In making the determination as to whether a person is an employee or an independent contractor, the National Labor Relations Board (“Board”) considers ten factors:
“For, although common Snarks do no manner of harm, Yet, I feel it my duty to say, Some are Boojums –.” So goes the warning in Lewis Carroll’s 1876 poem The Hunting of the Snark. In the poem, a hunting party pursues the harmless Snark but is warned along the way that some Snarks are actually highly dangerous Boojums. If one meets a Boojum, he will “never be met with again!” At the conclusion of the story, one member of the crew believes he has found a Snark and calls out to his friends – but when they arrive, they find that he has vanished without a trace, “For the Snark was a Boojum, you see.”
On August 27, 2015, the National Labor Relations Board released its opinion in the case of Browning-Ferris Industries of California, Inc. and Sanitary Truck Drivers and Helpers, Local 350, International Brotherhood of Teamsters, Case 32-RC-109684. Browning-Ferris Industries (BFI) operated a recycling facility. Another employer, Leadpoint Business Services (Leadpoint), provided workers who sorted recyclable materials inside the facility. The relationship between BFI and Leadpoint is governed by a Temporary Labor Services Agreement. The question in the case was whether or not BFI and Leadpoint are joint employers. The answer was, “yes.”
Recently, the National Labor Relations Board (“NLRB”) officially overruled longstanding protections against disclosure of witness statements taken by employers during an internal workplace investigation. Since 1978, the Board has maintained that the general duty on an employer to furnish information, pursuant to Section 8(a)(5) of the NLRA, “does not encompass the duty to furnish witness statements themselves” to a union. Anheuser-Busch, Inc., 237 NLRB 982, 984-85 (1978). Thus, a bright-line rule was born which protected the confidentiality of witnesses who chose to cooperate with internal workplace investigations.
A few months ago, my colleague Jana Grimm wrote a blog entry outlining the latest in the NLRB’s ongoing aggressive reviews of employer rules and policies. In her post, which can be found here, Jana outlined Memorandum GC 15-04, a memorandum from the NLRB’s general counsel providing guidance on the issue of employer handbook policies. Citing Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), which states that work rules can violate Section 8(a)(1) of the NLRA if the rule has a chilling effect on activity protected by Section 7, GC 15-04 gives several examples of “dos” and “don’ts” of policies governing topics such as social media, confidentiality, intellectual property, and contact with individuals outside the company.