NLRB to revisit employee use of employer email 9/10/18

By L. Michael Zinser, The Zinser Law Firm

On Aug. 1, the National Labor Relations Board invited interested parties to file briefs on whether the board should adhere to, modify or overrule Purple Communications – a case (decided by the Obama Board) that held employees who had been given access to their employer's email system for work-related purposes have a presumptive right to use that system, on non-working time, for communications protected by Section 7 of the National Labor Relations Act (union organizing activity).

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Supreme Court rejects NLRB position on class action arbitration waivers 6/5/18

By L. Michael Zinser, The Zinser Law Firm

On May 21, the United States Supreme Court issued its long awaited decision in Epic Systems Corp v. Lewis. Justice Gorsuch delivered the opinion of the court. Rejecting the position of the National Labor Relations Board, the court ruled that employers and employees may lawfully agree that any disputes between them will be resolved through one-on-one arbitration. The court ruled that under the National Labor Relations Act, employees do not have the right to file class or collective actions, no matter what they agreed with their employer.

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Transparency is important in subscription campaigns 4/30/18

By L. Michael Zinser, The Zinser Law Firm

To drive revenue, publishing companies are increasingly producing "premium editions" for their newspapers.

Many legal issues must be considered when preparing newspaper subscription promotions. What you communicate about "premium editions" – the cost and how they impact the length of a newspaper subscription can be critical, legally. These legal issues were brought into sharp focus in a recent lawsuit.

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Arkansas Supreme Court vacates contractor ruling 3/26/18

By L. Michael Zinser, The Zinser Law Firm

On March 1, reversing the Court of Appeals, the Arkansas Supreme Court ruled that a part-time grocery store security guard was an independent contractor, and not an employee, for purposes of Workers' Compensation.

The significance of this decision for newspaper publishers in Arkansas is that the primary factors relied upon by the Arkansas Supreme Court are usually present in the contract relationship between newspaper publishing companies and its independent contractor newspaper carriers.

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Independent contractor status in North Carolina 3/19/18

By L. Michael Zinser, The Zinser Law Firm

Recently, a former newspaper carrier filed a wage claim with the North Carolina Department of Labor, claiming employee status at a daily newspaper in the state. The newspaper carrier filed with the state Department of Labor, rather than federal DOL, because the federal wage and hour law contains a complete exemption for newspaper carriers; the North Carolina wage and hour law does not.

Of course, the newspaper stated that the individual was an independent contractor, not an employee. As part of its investigation, the North Carolina Department of Labor asked the company to provide specific information, in order to determine whether there was an employer/employee relationship.

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NLRB vacates Hy-Brand joint employment liability standard 3/12/18

By L. Michael Zinser, The Zinser Law Firm

On Feb. 26, the NLRB vacated its recent ruling in the Hy-Brand Industrial Contractors case, which overruled the National Labor Relations Board's controversial Browning-Ferris decision.

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Board establishes new test for reviewing employer policies 1/9/18

By L. Michael Zinser, The Zinser Law Firm

In this column, I have been predicting for some time that when all three Republican seats of the five-member National Labor Relations Board were filled by President Trump's appointees, the NLRB would begin reversing/overruling some of the Obama Board's more egregious decisions that demonstrated an outright hostility toward employers.

Chairman Philip A. Miscimarra's term expired on Dec. 17, 2017. On Dec. 14 and 15, Chairman Miscimarra went out "with a bang!"

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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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