Expert Analysis

• A Look At 2023's Major NLRB Developments Thus Far

  

  Over the last six months, the National Labor Relations Board has broadened its interpretation and enforcement of the National Labor Relations Act, including increasing penalties and efforts to prohibit restrictive covenants and confidentiality agreements, say Eve Klein and Elizabeth Mincer at Duane Morris.

• What 3rd Circ. Niaspan Decision Means For Class Cert.

  

  The Third Circuit's recent denial of class certification in the Niaspan antitrust case underscores its particularly stringent understanding of the implicit ascertainability requirement, which further fuels confusion in the courts, threatens uneven results and increases the risk of forum shopping, says Michael Lazaroff at Rimon Law.

• 2 Steps To Improve Arbitrator Diversity In Employment Cases

  

  There are prevalent obstacles in improving diversity among arbitrator ranks, but in the realm of employment-related disputes, there are two action items practitioners should consider to close the race and gender gap, say Todd Lyon and Carola Murguia at Fisher Phillips.

• Cos. Should Consider Virtual Bargaining To Show Good Faith

  

  Though the National Labor Relations Board recently determined that a Starbucks union's insistence on hybrid meetings was not an attempt to stall negotiations, the board’s lack of a formal decision on when virtual bargaining might be warranted should warn employers to stay flexible about how they come to the table, says Brandon Shemtob at Stevens & Lee.

• Employers Must Beware NLRB Noncompete Stance

  

  The National Labor Relations Board general counsel’s position that overly broad noncompete agreements could violate federal labor means employers should weigh the potential risks before offering such agreements, even though this issue has yet to come before the board for decision, says Samantha Buddig at Laner Muchin.

• AI Voice Tech Legal Issues To Consider In The Film Industry

  

  As studios create believable and identifiable artificial voice performances, there will be several legal pitfalls that rights-holders should evaluate in the context of rights of publicity, consumers' rights, relevant guild and union agreements, and the contractual language of performers' agreements, says Karen Robson at Pryor Cashman.

• High Court Labor Ruling Is A Ripple, Not A Sea Change

  

  Though the U.S. Supreme Court’s decision in Glacier Northwest v. International Brotherhood of Teamsters looks on the surface like a major win for employers’ right to sue unions for intentionally damaging company property during work stoppages, the ruling may not produce the far-reaching consequences employers hoped for, says Rob Entin at FordHarrison.

• NLRB's Ruling On BLM Buttons Holds Employer Lessons

  

  A recent National Labor Relations Board holding, that two companies violated federal labor law by banning employees from wearing Black Lives Matter buttons, at first seems to contrast with decisions in similar cases, but is based on specific key facts that employers should carefully consider, says Elizabeth Johnston at Verrill Dana.

• NLRB Outburst Ruling Hampers Employer Discipline Options

  

  A recent ruling from the National Labor Relations Board, which restores a worker-friendly standard on protections for profane outbursts during workplace actions, will severely limit employers' disciplinary processes, particularly when employee conduct crosses a line that would violate other federal statutes and regulations, says Michael MacHarg at Adams and Reese.

• FLRA Ruling May Show Need For Congressional Clarification

  

  With its recent decision in The Ohio Adjutant General's Department v. Federal Labor Relations Authority, the U.S. Supreme Court took a somewhat behavioral approach in determining that the guard acted as a federal agency in hiring dual-status technicians — suggesting the need for ultimate clarification from Congress, says Marick Masters at Wayne State University.

• Cos. Shouldn't Alter Noncompete, Severance Agreements Yet

  

  Two recent actions from the Federal Trade Commission and the National Labor Relations Board have sought to ban noncompete agreements and curtail severance agreements, respectively, but employers should hold off on making any changes to those forms while the agencies' actions are challenged, say attorneys at Herbert Smith.

• Handbook Hot Topics: Remote Work Policies

  

  Implementing a remote work policy that clearly articulates eligibility, conduct and performance expectations for remote employees can ease employers’ concerns about workers they may not see on a daily basis, says Melissa Spence at Butler Snow.

• Water Cooler Talk: Bias Lessons From 'Partner Track'

  

  Tracey Diamond and Evan Gibbs at Troutman Pepper chat with CyberRisk Alliance's Ying Wong, about how Netflix's show "Partner Track" tackles conscious and unconscious bias at law firms, and offer some key observations for employers and their human resources departments on avoiding these biases.