Legal adventurism in an attempt to make new law 12/12/17

By L. Michael Zinser, The Zinser Law Firm
By L. Michael Zinser, The Zinser Law Firm

This month's column reports on two National Labor Relations Board administrative law judge decisions involving the issue of whether someone is an employee or an independent contractor. In both cases, former NLRB General Counsel Richard Griffin had urged the ALJ to rule that merely classifying someone as an independent contractor is an independent violation of the National Labor Relations Act. This is legal adventurism in an attempt to make new law.

In one of the cases, the ALJ found independent contractor status and chose not to reach that novel issue. In the second case, the ALJ found employee status and agreed with the NLRB general counsel, finding that the misclassification of the individuals as independent contractors was a per se independent violation of the NLRA. With a new management majority sitting on the NLRB in Washington, let us hope that this legal adventurism will be reversed.

I also report on a new NLRB case involving an employer's texting and confidentiality rules, as well as a new court case addressing the ability to discover social media passwords in litigation.
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Management attorney Peter Robb confirmed as next NLRB general counsel 11/14/17

By L. Michael Zinser, The Zinser Law Firm

On Nov. 8, by a vote of 49 to 46, the U.S. Senate confirmed President Trump's nomination of Peter Robb to be the next NLRB general counsel. Robb, a management labor lawyer from Vermont, replaces Richard Griffin, whose term expired on Nov. 4.

In this column, also read an update about the U.S. Department of Labor overtime rule, news about an EEOC case, plus a case regarding the ADA.

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Emanuel confirmed; NLRB management majority restored 10/16/17

By L. Michael Zinser, The Zinser Law Firm

On the evening of Monday, Sept. 25, the U.S. Senate voted 49 to 47 to confirm William Emanuel to the National Labor Relations Board.

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Emanuel confirmed; NLRB management majority restored 9/26/17

By L. Michael Zinser, The Zinser Law Firm

On the evening of Monday, Sept. 25, the U.S. Senate voted 49 to 47 to confirm William Emanuel to the National Labor Relations Board.

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Court of Appeals reverses NLRB on handbook policies 8/15/17

By L. Michael Zinser, The Zinser Law Firm

In recent years, the National Labor Relations Board has relentlessly attacked common sense policies found in many employee handbooks. I have been hoping that the U.S. Court of Appeals would correct these egregious decisions. I am delighted to report that, on July 25, the U.S. Court of Appeals for the 5th Circuit issued an opinion in a case involving T-Mobile that did just that.

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President Trump moves to fill two NLRB vacancies 7/11/17

By L. Michael Zinser, The Zinser Law Firm

On June 28 President Trump formally nominated both Marvin Kaplan and William Emmanuel to fill the two Republican vacancies on the National Labor Relations Board. At the present time, the NLRB has a 2-to-1 pro-union, Democratic majority. These two nominees, once confirmed, will then shift the Board to a 3-to-2 Republican majority.

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Two questions regarding confidentiality 3/28/17

The following Legal Hotline questions were addressed by L. Michael Zinser of The Zinser Law Firm

Question: Can an employer maintain a confidentiality policy that explicitly directs employees not to discuss coworkers' "private employee information," such as salaries, disciplinary action, etc., unless the information was "shared by the employee" whose information is being discussed?

Question: Employers are usually concerned about maintaining confidentiality when conducting sexual harassment, hostile work environment, and suspicion of abuse investigations. The need for confidentiality is paramount in these types of cases. Can an employer have a policy that, categorically, requires confidentiality when conducting these types of investigations?

Click MORE to read the responses from Michael Zinser of The Zinser Law Firm.

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A Republican president can reassert management rights 11/15/16

By L. Michael Zinser, The Zinser Law Firm

Donald Trump will have the ability to impact several key federal government agencies, including the National Labor Relations Board and the U.S. Department of Labor.

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Update on litigation filed to stop the DOL overtime rule 11/7/16

By L. Michael Zinser, The Zinser Law Firm

Mike Zinser reports on two upcoming hearings on the overtime rule: one set for Nov. 16 and one on Nov. 28. One possible result is that the court could enjoin and halt the Dec. 1 implementation of the rule.

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Outside sales exemption is constitutional 4/19/16

By L. Michael Zinser, The Zinser Law Firm

Ohio Supreme Court upholds a minimum wage amendment in the Ohio Constitution that states, in pertinent part, that "employer," "employee," "person" and "independent contractor" all have the same meanings as they do under the Federal Fair Labor Standards Act.

While not specifically discussing this case, federal law also excludes from the Wage and Hour Law individuals who deliver newspapers to the consumer. The same exclusion should also apply under Ohio law.

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