The National Labor Relations Board (“NLRB”) continued rolling back anti-employer decisions by overturning its standard for reviewing the legality of employee handbook policies.  The new standard moves towards a balancing test that will take into account the handbook policies’ impact on employee rights and the employer’s reasons for maintaining the policy. 

The National Labor Relations Board (“Board”) has rolled back yet another of its anti-employer rulings from the Obama administration. Under the National Labor Relations Act (“NLRA”), unionized employers must refrain from making a unilateral change in employment terms unless the union first receives notice and the opportunity to bargain over the change.  However, under longstanding law, there was no duty to bargain over “changes” made pursuant to a past practice.  But in 2016, the Board in E.I. Du Pont De Nemours (“Du Pont”) held that even if an employer continues to do precisely what it had done many times previously—for years or even decades—taking the same actions constitutes a “change,” which must be preceded by notice to the union and the opportunity for bargaining.

In a much expected 3-2 decision, the National Labor Relations Board (“NLRB”) yesterday finally overruled the Board’s much-derided 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“Browning-Ferris”), that allowed for a finding of joint employment based upon a showing of “indirect control” or the ability to exert such control.  Instead, the Board returned to the principles governing joint-employer status that existed prior to Browning-Ferris.  Under the prior standard, in order to find joint employment, there must be a showing of “direct and immediate control” of the terms and conditions of employment.

Last week, Purple Communications (“Purple”), a video provider for deaf and hard-of-hearing individuals, appealed a 2014 NLRB ruling that allows employees to send union messages over work email to the U.S. Court of Appeals for the Ninth Circuit. The NLRB’s 2014 ruling held that employees who already have access to their employer’s email system are permitted to use the email system for protected union-related activities because email is the premier platform for “worker speech” in the modern workplace. That decision was limited to only workers who have already been granted access to the employer’s email system. The NLRB also ruled that employers may institute a complete ban on non-work email use only if the employer can justify the ban by identifying “special circumstances” that make the prohibition necessary. This ruling overturned a 2007 NLRB judgment that held employees had no right to use employer email for union activity.

In an unfortunate but not unexpected ruling, the California Supreme Court yesterday sided with the United Farm Workers of America (“UFW”) and the Agricultural Labor Relations Board (“ALRB” or “Board”) against one of the largest fruit farms in the nation.  In Gerawan Farming, Inc. v. ALRB, the Court reversed a lower court ruling and held that a 2002 amendment to the Agricultural Labor Relations Act (“ALRA”) that forces agricultural employers to mediate with unions and  imposes binding collective bargaining agreements (“CBA”) if the parties are unable to reach a deal is constitutional.  To add insult to injury, the Court also held that an employer may not argue an “abandonment defense” to a “mandatory mediation and conciliation” (“MMC”) request, even where the union failed to contact the employer for almost twenty years.

Proposed legislation that would guarantee immigrant workers’ rights in the workplace has been passed by the California Legislature and is now on the Governor’s desk. As we reported here earlier, the Immigrant Worker Protection Act (“AB 450”) would specifically require employers to ask for a warrant before granting the U.S. Immigration and Customs Enforcement (“ICE”) access to nonpublic areas of a worksite and prevents employers from providing ICE confidential employee information, such as social security numbers and, most importantly, I-9s, without a “notice for inspection.” Penalties for non-compliance range from $2,000 to $5,000 for an initial violation to between $5,000 and $10,000 for subsequent violations.

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