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Expert Analysis

• 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.

• NLRB GC Memos Complicate Labor Law Compliance

  

  Policy memoranda from National Labor Relations Board General Counsel Jennifer Abruzzo outlining new interpretations of the National Labor Relations Act create compliance dilemmas for employer counsel, who must review not only established law, but also statements that may better predict how the board will decide future questions, says Daniel Johns at Cozen O'Connor.

• NLRB Order May Mean Harsher Remedies For Labor Violations

  

  The National Labor Relations Board's recent ruling against a Nebraska meat processor, ordering an expanded range of remedies for the employer's repeated labor law violations, signals the NLRB's willingness to impose harsh remedies more frequently, in the full spectrum of unfair labor practice litigation, say Eric Stuart and Zachary Zagger at Ogletree.

• Eye On Compliance: Joint Employment

  

  Madonna Herman at Wilson Elser breaks down the key job conditions that led to a recent National Labor Relations Board finding of joint employment, and explains the similar standard established under California case law — providing a guide for companies that want to minimize liability when relying on temporary and contract workers.

• How Unions Could Stem Possible Wave Of Calif. PAGA Claims

  

  Should the California Supreme Court hold in Adolph v. Uber that the nonindividual portions of Private Attorneys General Act claims survive even after individual claims go to arbitration, employers and unions could both leverage the holding in Oswald v. Murray to stifle the resurgence in representative suits, say attorneys at Greenberg Traurig.

• Tips For Defending Employee Plaintiff Depositions

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  A plaintiff cannot win their employment case through a good deposition, but they can certainly lose it with a bad one, so an attorney should take steps to make sure the plaintiff does as little damage as possible to their claim, says Preston Satchell at LexisNexis.

• Water Cooler Talk: Whistleblowing Insights From 'Dahmer'

  

  Tracey Diamond and Evan Gibbs at Troutman Pepper chat with DS Smith's Josh Burnette about how the show "Dahmer – Monster: The Jeffrey Dahmer Story" provides an extreme example of the perils of ignoring repeat complaints — a lesson employers could apply in the whistleblower context.

• Labor Trends To Watch In Warehousing And Distribution

  

  Employers in the warehousing and distribution sector should prepare for major National Labor Relations Board updates this year that will likely increase their exposure to unfair labor practice charges and make it easier for workers to unionize, say Laura Pierson-Scheinberg and Lorien Schoenstedt at Jackson Lewis.

• Musk Ruling A Lesson On Employer Statements About Unions

  

  A recent Fifth Circuit decision in Tesla v. National Labor Relations Board found that Elon Musk's 2018 tweets threatened employees at the company amid a unionizing campaign, reminding employers that communicating public statements about union organizing should be rooted in facts, says Daniel Handman at Hirschfeld Kraemer.