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Labor Law Enforcement Agency Discovers the “Real World”

Posted by Travis L. Tufts | Jan 05, 2018 | 0 Comments

Last month the National Labor Relations Board (“NLRB”) – the agency responsible for enforcing U.S. labor law – reversed two controversial decisions and, in doing so, provided clearer standards and guidance for employers grappling with labor and employment law issues.  At issue in the first case was whether The Boeing Company's workplace policy banning the use of cell phone cameras infringed upon employees' rights to unionize or join to advance their interests as employees.  Acknowledging the “real world complexities” employers like Boeing face when enacting critical workplace policies, the NLRB found that Boeing's legitimate safety reasons outweighed any adverse side effects on employees' labor rights.  Importantly, in reaching its conclusion, the NLRB adopted a new analytical framework expressly requiring the agency, judges or arbitrators tasked with analyzing workplace policies to balance the employer's legitimate interests against employees' labor rights. 

The NRLB's second decision, involving Hy-Brand Industrial Contractors and Brandt Construction Company, provided needed relief and clarity for employers sharing employees with another entity – referred to as joint employers under the National Labor Relations Act (“NLRA”).  Similar to its action in the Boeing case, the NLRB discarded the prior analytical framework used to determine when joint employers are liable for violations of the NLRA.  Recognizing its previous standard was “ill-advised as a matter of policy,” the NLRB adopted a revised standard focused on the employer's direct control over a separate entity's employees, as opposed to the prior standard's controversial focus on indirect control.  As a result of this decision, employers engaged in joint employment arrangements are better equipped to determine potential liability under the NLRA.

Both decisions have broader implications for employers.  Although the NLRA heavily regulates unionized workforces, most private employers are nonetheless subject to the NLRA.  As the Boeing case illustrates, private employers' workplace policies may be illegal if the policy unduly infringes upon employees' rights to engage in protected concerted activities.  Similarly, private employers engaged in joint employment arrangements must be careful to fully understand joint employment relationships and the implications of running afoul of the NLRA.  Further, although the NLRB's ruling in Hy-Brand clarified how it will analyze joint employment arrangements, the NLRB's analysis does not extend to similar federal laws governing the joint employment arrangement, such as the Fair Labor Standards Act.  Because numerous federal laws are implicated, employers should seek the advice of counsel to ensure the terms of any joint employment arrangements comply with federal and state law.

If you are a business owner and believe your workplace policies need to be updated to reflect recent changes in the law, including Arizona's recent enactment of Proposition 206, or, if you are a business owner who needs to develop workplace policies, employment handbooks, or joint employee agreements, the attorneys at Farhang and Medcoff are skilled in federal and state law directly impacting your business operations.  Our attorneys are dedicated to helping you develop policies or employment agreements that balance your business needs with your legal obligations. 

About the Author

Travis L. Tufts

Travis L. Tufts is an attorney practicing in the areas of estate planning...


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