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Volume 7, Issue 1
January 2018
NLRB Overrules Browning-Ferris Industries Decision
The National Labor Relations Board has overruled its 2015 decision on the Browning-Ferris Industries case that set the test for determining whether or not multiple employers could be considered joint employers under the NLRA. Prior to Browning-Ferris, the NLRB held that multiple entities could be considered joint employers only if each had exercised direct and immediate control over a group of employees. With the 2015 decision, critics believed companies would be more likely to be found liable for workers of companies they either worked with through staffing or contractual agreements. In this latest decision, however, the board said it will be returning to the traditional joint employer test where direct and immediate control is a prerequisite to joint employer status. 
New Standards for Employee Handbooks 

The National Labor Relations Board overruled the "Lutheran Heritage" precedent in a case involving Boeing's maintenance of a "no-camera" rule. In 2004, the Lutheran Heritage case barred neutrally worded employee handbook rules that could be "reasonably construed" by an employee to prohibit rights provided under the National Labor Relations Act. The Board established a new test in place of the Lutheran Heritage "reasonably construe[d]" standard. The new test will focus on the nature and extent of the potential impact on NLRA rights and the legitimate justifications in association with the rule. There will be three tiers to provide "greater clarity." The categories are as follows: 
  1.  Category 1 are rules that cannot be reasonably interpreted to have infringed NLRA rights or rules that can be sufficiently justified by the employer. 
  2. Category 2 are rules that "warrant individualized scrutiny" to determine whether they infringed on NLRA rights. 
  3. Category 3 are rules that the "Board will designate" as unlawful to have on the books like rules prohibiting disucssion of wages and benefits among employees. 
NLRB Moves to Roll Back Rule That Forced Employers To Give Employee Contact Information to Labor Unions
The NLRB has moved to roll back the rule forcing employers to give employee contact information to labor unions regardless of whether or not employees consented. The current law requires employers to give unions a list of all prospective voters when a union petitions to represent employees. The Board expanded this requirement in 2014 to include "personal phone numbers and email addresses" in addition to the names and addresses of employees. All of this could be done without the workers' consent. The rule, also known as "the speedy election rule," was highly controversial because it limited an employer's ability to raise objections during the election process as well as shortened the time between scheduling an election and when the election is held. Many critics said it gave unions more power in their quest to organize workers as well as infringed on employees' privacy rights. 
Immigrant Worker Protection Act Passed in California
The Immigrant Worker Protection Act (AB 450) was signed into law by California Governor Jerry Brown. The law restricts public and private employers in California from admitting immigration inspectors to the workplace without a judicial warrant. Employers will also be required to notify employees before and after certain immigration inspections take place. The new law will take effect on January 1, 2018. An employer may permit an agent to enter a nonpublic area in order to verify whether an agent has a judicial warrant. Unless required by Federal law, the new law also prohibits employers from allowing immigrant enforcement agents to access, review or obtain employee records without subpoena or judicial warrant. 
Upcoming Management Update Seminars

Breazeale, Sachse & Wilson, L.L.P. Labor & Employment Attorneys