By: Christopher W. Kelleher, Esq. & Danielle A. Vera, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here & here to find prior posts.

In April and August of this year, the Second and the Eighth Circuit Courts of Appeals affirmed two Board rulings and held that under certain circumstances even extremely vulgar or racially bigoted speech fall within the protections of the NLRA. In Memorandum GC 18-02, the new General Counsel has signaled his interest in reconsidering the analysis in these cases, and narrowing the outer boundaries of speech protections afforded by the Act. Importantly, this is an opportunity for the Trump Board to change direction regarding the application of the Atlantic Steel factors to social media cases.

In Pier Sixty, an employee was terminated for posting the following on Facebook regarding his supervisor Bob: “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!.” NLRB v. Pier Sixty, LLC, Case No. 15-1841 (2nd Cir. Apr. 21, 2017). The employee posted this online during an authorized break only two days before a contentious union election. Ultimately the ALJ, the Board and the Second Circuit agreed that the vulgar language did not push the comment outside of the NLRA’s protected speech. For a more detailed discussion of this case, Click here.

In Cooper Tire & Rubber Co., the ALJ, Board, and Eighth Circuit agreed that a picketer’s racially bigoted comments toward African-American replacement workers did not provide the Employer with “just cause” to terminate him. Cooper Tire & Rubber Co. v. NLRB, Nos. 16-2721, 16-2944 (8th Cir. Aug. 8, 2017). The picketer shouted at a van full of African-American replacement workers, “Did you bring enough KFC for everybody?” and asked other picketers if they could “smell fried chicken and watermelon” as the van passed by. The Eighth Circuit held that because the speech was merely offensive and not actually threatening, it was protected.

Although the new General Counsel’s Advice memorandum signals that change related to the outer bounds of NLRA-protected speech is on the horizon, until any change is made, Employers should remain vigilant regarding the NLRB’s current position but look forward to potential changes coming in 2018.

By: Ronald J. Kramer, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, & here to find prior posts.

Last week’s issuance of General Counsel Memo 18-02 gives companies hope that the Obama Board’s controversial successorship precedents may be reversed.  General Counsel Robb directed that successorship cases involving the following decisions be submitted to Advice for review: GVS Properties, LLC, 362 NLRB No. 194 (2015); Nexeo Solutions, LLC, 364 NLRB No. 44 (2016); Creative Vision Resources LLC, 364 NLRB No. 91(2016).  Each case merits reconsideration.

Successorship:  Whether an asset buyer has a duty to bargain depends on whether (1) a majority of the buyer’s workforce consists of the former employees of the seller, (2) the buyer’s “operational structure and practices differed from those of” the seller, and (3) the unit would no longer be an appropriate one. NLRB v. Burns Int’l Sec. Servs, Inc., 406 U.S. 272 (1972).  Even if the buyer is a Burns successor that must recognize and bargain with the union, it is free to set initial terms and conditions of employment unless it is a “perfectly clear” successor:  “[T]here will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining representative before he fixes terms.” Id.

GVS Properties:  In GVS Properties, an asset buyer required by a local law to retain the predecessor’s workforce for a certain initial time period was found to be a Burns successor even though it had no choice in whom to hire.  Dissenting Board Member Johnson argued that, based on Fall River Dyeing v. NLRB, 482 U.S. 27, 40-41 (1987), a buyer can become a successor only if it does so voluntarily, i.e., if it makes a “conscious decision” to hire a majority of the predecessor’s employees. When a worker retention statute applies, the Burns test could thus only be applied upon the expiration of the state mandated employment period, after the employer could freely choose whether and how many of the predecessor employees to retain.

The Board majority disagreed, claiming that GVS made its “conscious” decision to have a majority of its workforce consist of predecessor employees when it acquired assets in a locale subject to the retention law. The majority analogized to prior cases where the Board found successorship to apply when buyers were required to retain the predecessor’s employees as part of the purchase agreement, or when employees were hired on a probationary basis.

Member Johnson warned that the Board’s decision likely would nullify local worker retention statutes, for the courts would find them preempted by the NLRA given that states and local governments effectively could use such laws to force purchasing employers to recognize unions. Indeed, in Rhode Island Hospitality Ass’n v. City of Providence, 667 F.3d 17 (1st Cir. 2011), the court rejected preemption claims on the assumption that, under Burns, a successor employer could not be forced to recognize the union during a statutory retention period.

Nexio Solutions and Creative Vision Resources:  The other two decisions expanded the when a buyer was a “perfectly clear” successor bound by the predecessor’s contract.  In Nexio Solutions, the Board found perfectly clear successorship — not because of what the buyer did or said — but because the seller initially promised employees that they would be hired by the buyer under basically the same terms and conditions of employment.  Traditionally, for perfectly clear successorship to trigger the buyer must either mislead employees into believing there would be no changes or fail to clearly announce an intent to set new terms prior to inviting former employees to accept employment. The Board imputed seller’s statements to the buyer, and disregarded the buyer’s statements at the time employees were offered positions that conditioned employment on different terms and conditions of employment.

Dissenting Member (now Chair) Miscimarra rejected the majority’s claims that the buyer must be held to the seller’s statements since the sale agreement provided for buyer review of communications, that it somehow should have repudiated the statements, or that seller was acting as the buyer’s agent.  He also rejected claims that the sale agreement somehow made the buyer a perfectly clear successor since it provided both that employees would be offered positions and that employment terms would be substantially comparable in the aggregate.  Miscimarra decried the decision as ungrounded in the law of agency and counter to the policies underlying Burns and Spruce Up.

In Creative Vision Resources, the Board found perfectly clear successorship where:  the understanding was anyone who submitted an application would be offered a position; only a minority of employees provided applications were advised at the time that there would be different employment terms; all of the personnel, who were then independent contractors, received W-4 withholding forms with their applications; and on the morning operations were to begin employees were advised of the new terms, causing several to not to accept employment.  The Board determined that the successor had expressed an intention to retain the employees, and became a perfectly clear successor by not concurrently revealing its intention to establishing new employment terms when issuing applications.  Advising employees the first morning they showed up to work was insufficient since the successor had already expressed its intent to retain the predecessor’s employees.

Dissenting Member (Chair) Miscimarra argued the successor had effectively communicated its intent to set new terms on or before employees were invited to accept employment (which he considered under the facts of this case to be the morning operations started) because: a number of employees had been told in advance; the W-4 withholding forms clearly portended different employment conditions; and before work actually started such that employees could accept employment all were told of the changes.  Miscimarra criticized the majority for applying the law in “an excessively rigid and formalistic manner that does not do justice to the unique facts of this case,” reminded them that the exception must remain a narrow one, and noted that the burden of proof was on the General Counsel, not the employer.  Miscimarra also argued that an employer could not be considered to be a perfectly clear successor unless and until the union demanded recognition.

Whether/when a buyer subject to a retention statute is to be considered to be a successor, and the conditions under which are buyer might be a perfectly clear successor are critical issues companies need certainty on when acquiring businesses.  While a reversal of these three precedents would benefit employers, they are still the law.  Companies not wishing to become test cases for the Trump Board should carefully follow current successorship precedents when acquiring businesses–and hope the Board gets its test cases soon.

 By: Karla E. Sanchez, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, & here to find prior posts.

In GC Memo 18-01, the newly appointed General Counsel listed cases concerning no cameras and recording rules as requiring submission to the Division of Advice for consideration as to whether the GC “might want to provide the Board with alternative analysis.” The GC also cited to Purple Communications, 361 NLRB 1050 (2014).  The GC’s inclusion of Purple Communications in its Memo suggests that the GC may disagree with the Obama Board’s decision.

In Purple Communications, the Board majority ruled that employees who have access to an employer’s email system as part of their job, may during non-working time use the email system to communicate about their wages, hours, working conditions, other terms and conditions of employment, and union issues. Then Member Miscimarra and former Member Johnson dissented.

In Purple Communications, the Company had an “Internet, intranet, Voicemail, and Electronic Communications Policy” that only allowed the use of company owned electronic equipment and systems, including email, for business purposes. The Communications Workers of America union filed the charge alleging that the prohibition interfered with employees’ Section 7 rights. The Union prevailed. Notably, the ruling overturned the Board’s 2007 decision in Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009) (“Register Guard”), which held that employees have no statutory right to use their employer’s email systems for organizing or for discussing wages or other terms and conditions of employment.

In their separate dissents, Miscimarra and Johnson articulated various reasons for their disagreement with the Board’s majority. For example, Miscimarra articulated four main concerns and reasons for his dissent:

  • That the Board’s decision “Improperly presumes that limiting an employer’s email system to business purposes constitutes ‘an unreasonable impediment to self-organization.’”
  • That the Board’s decision failed to balance NLRA protections for employees and employers’ property rights.
  • That the Board’s decision significantly affects other legal requirements including well-established legal principles under the NLRA. For example, Miscimarra articulated that employers, unions, and employees would have problems exercising the right to use email systems with other NLRA principles and rights such as the prohibition on surveillance of employees’ protected activities, the Board’s axiom that working time is for working, and employers’ right to restrict solicitation during working time.
  • That the Board’s decision replaced a “longstanding rule that was easily understood,” causing instability, confusion, and uncertainty.

The Purple Communications decision has been viewed by many employers as a taking of employer’s private property. Given the GC’s inclusion of Purple Communications in its GC Memo, there is hope for employers in 2018 that the Obama Board’s deviation from its precedent in Register Guard may be reconsidered under the Trump Board.

 

  By: Michael Rybicki, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo setting forth a wide range of issues that must be submitted to Advice before Complaints will be authorized. Generally these issues involve areas of the law where the “Obama Board” issued decisions departing from previously established precedent. The memo strongly suggests that instead of declining to exercise prosecutorial discretion not to issue Complaints where the General Counsel disagrees with the legal principles announced in these decisions, he intends to given the newly constituted Board the opportunity to assess these legal principles as the opportunity arises. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Today’s blog looks at controversial changes with respect to work stoppages. Click here, here, & here to find prior posts.

In Quietflex Manufacturing, 344 NLRB 1055 (2005), Member Liebman dissented from a decision that an employer did not violate the Act by discharging 83 employees for refusing to vacate its parking lot where those employees had engaged in a peaceful 12-hour work stoppage to protest their terms and conditions of employment. The majority had held that under relevant precedent, while an on-the-job work stoppage can be a form of economic pressure protected under Section 7 of the National Labor Relations Act, not every such work stoppage is protected and that “[a]t some point an employer is entitled to exert its private property rights and demand its premises back,” citing Cambro Mfg. Co., 312 NLRB 634, 635 (1993). Applying a 10-factor test,[1] the majority determined that in balancing employee interests against the employer’s property interests, the employer’s interests prevailed. In her dissent, Member Liebman asserted that the balance struck by the majority seemed unreasonable and implicitly argued that heavier weight should have been given to those factors that tended to favor protection.

Member Liebman’s views were essentially adopted by the Obama Board in a series of cases, Los Angeles Airport Hilton Hotel & Towers, 360 NLRB 1080 (2014), enf’d Fortuna Enterprises, LP v. NLRB, 789 F.3d 154 (D.C. Cir., 2015); Nellis Cab Company, 362 NLRB No. 185 (2015); and Wal-Mart Stores, Inc., 364 NLRB No. 118 (2016). In each of these cases the majority purported to apply the Quietflex multi-factor balancing test and found that the activity at issue was protected. While Member Johnson concurred with the result in Los Angeles Airport Hilton, he disagreed with respect to several aspects of the majority’s analysis of the Quietflex factors, particularly with respect to the failure of the majority to give what he considered to be proper weight to the employer’s open door policy as an alternative means for employees to present their grievances.

In dissenting in part in Wal-Mart, Member Miscimarra found that the activity in question constituted a modern day sit-down strike and on-premises protest by employees inside a retail store before and during the store’s grand reopening that was clearly unprotected under the “disruptive or interference standard” applicable in a retail setting, citing Restaurant Horikawa, 260 NLRB 197 (1982). He further noted that even assuming that the Quietflex factors were applicable, he disagreed with the majority’s analysis under the Quietflex standards. The essence of his disagreement, set forth in a lengthy and detailed dissent, was that the majority had either misapplied the standards or misconstrued or given inappropriately heavier weight to those factors that tended to favor protection.

For example, with respect to the third Quietflex factor, whether the work stoppage interfered with production or deprived the employer access to its property, contrary to the majority’s conclusion that this factor favored protection, Member Miscimara believed this factor “weighs against protection and does so heavily.” (Slip op. at p. 15.) In his opinion, the record clearly established that “the employees’ actions caused substantial disruption and interference, including an adverse impact on customers.” (Id.)

In our view, Member Miscimara’s views with respect to the applicability and construing of the Quietflex standard and the weight to be given the various factors is better reasoned from both a legal and practical perspective. General Counsel Robb’s memo suggests that he may agree, possibly giving employers – and particularly retail employers – something to look forward to in 2018.

[1] The 10 factors applied in Quietflex were: (1) the reason the employees have stopped working; (2) whether the work stoppage was peaceful; (3) whether the work stoppage interfered with production, or deprived the employer access to its property; (4) whether employees had adequate opportunity to present grievances to management; (5) whether employees were given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) whether employees were represented or had an established grievance procedure; (8) whether employees remained on the premises beyond their shift; (9) whether employees attempted to seize the employer’s property; and (10) the reason for which employees were ultimately discharged [disciplined].

By: Ashley Laken, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

In GC Memo 18-02, the new General Counsel of the NLRB listed “Disparate treatment of represented employees during contract negotiations” as requiring submission to his Division of Advice for consideration before proceeding to issue a complaint in an unfair labor practice case, citing to the Obama Board’s decision in Arc Bridges, Inc., 362 NLRB No. 56 (2015). The new GC described Arc Bridges as “Finding unlawful the failure to give a company-wide wage increase to newly represented employees during initial bargaining, even where there was no regular, established annual increase and the employer was concerned that it would violate the Act if it unilaterally provided the increase to represented employees.” The GC Memo 18-02 suggests the GC may disagree with the Arc Bridges decision.

In Arc Bridges, while an employer was negotiating an initial collective bargaining agreement, it gave a 3% wage increase to all employees outside of the bargaining unit but did not provide any increase to bargaining unit employees. The Board found that the employer’s actions were unlawfully motivated and violated
Section 8(a)(3) of the NLRA. The Board observed that an employer can treat represented and unrepresented employees differently during the course of negotiations, so long as the disparate treatment is not unlawfully motivated.  The Board then proceeded to find that the employer’s decision to withhold the wage increase from union-represented employees was motivated by antiunion animus, and ordered the employer to retroactively pay each of the affected employees for the increase they would have received, plus interest compounded daily, plus compensation for any adverse tax consequences.

Then-Member Miscimarra vigorously dissented, reasoning that in his view, the evidence manifestly failed to support an inference of unlawful motivation. He also reasoned that even if the evidence showed otherwise, the employer had shown it would have withheld the increase for legitimate, nondiscriminatory reasons, which included preserving bargaining leverage and avoiding a Section 8(a)(5) charge.

Miscimarra observed that “Under the Board’s prevailing but mistaken view,” the General Counsel can show that protected conduct by employees was a motivating factor in an employer’s decision simply by showing generalized antiunion animus. Instead, Miscimarra observed, the General Counsel must establish a motivational link between the protected activity and the adverse employment action.

Miscimarra made these additional observations to support his view that the Board was mistaken:

  • It is important to recognize that it is not unlawful “antiunion motivation” when an employer desires to be more successful in union negotiations, and the Board has long held that employers can offer different benefits to represented and unrepresented groups of employees as part of its bargaining strategy.
  • Annual wage increases at the employer were not the status quo, and refraining from giving unit employees a wage increase while bargaining was ongoing was what the employer was supposed to do; otherwise, the employer would have violated Section 8(a)(5).
  • Especially in this context, the Board must require strong and convincing evidence sufficient to prove unlawful motivation; otherwise, employers would run the risk of violating the Act whenever they comply with their legal obligation to refrain from automatically giving represented employees whatever increases are granted to other employees.
  • The practical effect of the majority’s decision was to put the employer in a no-win situation, and the Board cannot reasonably adopt standards that cause parties to be in violation of the Act regardless of the actions they take.

In our view, Miscimarra’s approach makes more sense from both a practical and a legal standpoint. And GC Memo 18-02 suggests that the new NLRB General Counsel may agree, possibly giving employers something to look forward to in 2018.

 By: Kaitlyn F. Whiteside, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

With the publication of Friday’s General Counsel Memorandum (GC Memo 18-02), employers may finally begin to see a much-anticipated shift at the NLRB that many have been waiting on since last year’s election.

Of particular concern for many employers is the NLRB’s interpretation of commonplace work rules contained in employee handbooks. According to newly appointed General Counsel Peter Robb, cases involving some potentially unlawful handbook rules must now be submitted to the Division of Advice.  In particular, GC Memo 18-02 notes that the Division of Advice is interested in cases involving certain rules prohibiting disrespectful conduct, rules prohibiting use of employer trademarks and logos, and no cameras/recording rules.

Perhaps most notably, GC Memo 18-02 expressly rescinds the prior General Counsel guidance concerning employer work rules contained in GC Memorandum 15-04. There, former General Counsel Richard Griffin offered thirty pages of guidance on potentially unlawful workplaces rules under the Board’s standard set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

This standard has been criticized in a number of recent dissents, including a lengthy critique by Chairman Miscimarra in William Beaumont Hospital, 363 NLRB No. 162 (2016) (see post here). There, then Member Miscimarra advocated for entirely abandoning the Board’s standard in Lutheran Heritage under which the Obama NLRB greatly expanded the scope of workplaces rules considered to be unlawful under the NLRA.

Lutheran Heritage provides that a facially-neutral rule that does not expressly restrict Section 7 activity, was not adopted in response to Section 7 activity, and has not been applied to restrict Section 7 activity, may still be unlawful if employees would reasonably construe the rule as restricting Section 7 activity. In William Beaumont, Chairman Miscimarra suggested that an alternative approach would be to evaluate facially-neutral rules on “(i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.”

In GC Memo 18-02, the General Counsel appears to suggest that he may support Chairman Miscimarra’s proffered test. The General Counsel specifically notes that the Division of Advice is interested in any cases in which the outcome would be different under the Chairman’s analysis in William Beaumont. The full implications of Chairman Miscimarra’s proposed test for handbook provisions is unknown. What we can say for sure is that the Chairman sees value in the publication of workplace rules and policies and that he has advocated for predictability and practicality, music to many employers’ ears.  With the General Counsel in place and a full five-member Board confirmed by the Senate, employers may have additional reasons to look forward to 2018.

  By: Brian Stolzenbach, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration, which our blog will be exploring over the next three weeks.

In keeping with the tradition of prior General Counsels (see here (GC 16-01), here (GC 14-01), and here (GC 11-11) for prior memos from President Obama’s appointees), Mr. Robb provided the NLRB’s Regional Offices with a list of issues that must be submitted to his Division of Advice for consideration before proceeding to issue a complaint in an unfair labor practice case. Although the Regional Offices are instructed to issue complaints in accordance with extant law (i.e., the law created by the NLRB during the Obama Administration), Mr. Robb suggests that he “might want to provide the Board with an alternative analysis.” As usual when the General Counsel’s office flips from Democrat to Republican or vice versa, the memo basically provides a list of important case law developments from the prior administration that are likely to be overturned. Here, Mr. Robb identifies nearly 30 such cases covering 15 important subjects for employers.

In addition, Mr. Robb immediately rescinds seven prior memos issued by President Obama’s appointees and revokes five initiatives set forth in other memos issued by the General Counsel’s Division of Advice during the Obama Administration.

As the numbers above suggest, a full explanation of Mr. Robb’s five-page memo is far more than a single blog can handle. Seyfarth Shaw labor lawyers will be posting an item on this blog each weekday for the next three weeks, exploring a different aspect of the memo each day.

P.S. If you just can’t wait and need a full and complete analysis of the memo more quickly, don’t hesitate to drop your friendly neighborhood Seyfarth labor lawyer a note. Any of us would be glad to oblige.

 

By: Ashley Laken, Esq.

Seyfarth Synopsis: Recognizing the rise of Millennials and the increasing diversity of the workforce, some labor unions appear to be taking a keen interest in increasing the diversity of those in their leadership ranks, which is at least in part a key organizing tactic.

As part of Seyfarth’s FutureEmployer initiative, we’ve been taking a look at how the changing makeup of the workforce is and might be affecting union organizing activity, and what employers can and should do in response. One key change in the workforce is the rise in Millennials: it’s estimated that by 2025, they will make up 75% of the workforce. And they’re also the most diverse adult generation to date. But interestingly, even though they appear to have relatively favorable views of organized labor, many of them have not fallen prey to union organizing. At least not yet.

Unions appear to be cluing in to this, and they’re responding accordingly. In a recent article published in Bloomberg BNA’s Daily Labor Report, Maria Somma, the first Asian organizing director for the United Steelworkers, was quoted as saying “There’s a saying within the labor movement: male, pale, and stale . . . that has been our union. But that’s not who our union is now. It’s also not who our movement is going to be.” Union leaders were also quoted as saying that if the union movement is going to survive and thrive, unions have to establish mentorship opportunities to groom young, minority members to take over.

And at least some unions appear to be putting their money where their mouth is. For example, the International Union of Painters and Allied Trades currently has its first black president, and it also has three women of color who are under the age of 35 leading its strategic organizing division. Similarly, the American Federation of School Administrators currently has its first black female president, the SEIU is currently led by its first female president, and the National Education Association is currently led by its first Latina president. The BNA article also reported that according to the AFL-CIO, approximately 47% of the delegates at its recent convention were women or people of color, and 7 of its more than 50 affiliate unions are led by women. And not surprisingly, diversity was a major topic of discussion throughout the AFL-CIO’s recent convention.

Given that it looks like union leadership is starting to recognize this demographic shift in the workforce and is promoting younger, more diverse individuals into leadership positions in response, it might be wise for employers to ask themselves if they should be doing the same within their own leadership ranks, both as a union avoidance strategy and as good business practice.

  By: Frederick T. Smith, Esq., Jennifer L. Mora, Esq., and Christopher W. Kelleher, Esq.

Seyfarth Synopsis: On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.

The Department of Transportation (DOT) has published its long-awaited final rule amending its drug testing program for DOT-regulated employers. The new rule comes in the wake of the Department of Health and Human Services (HHS) revised “Mandatory Guidelines for Federal Workplace Drug Testing Programs” which became effective on October 1, 2017.

The new DOT rule makes the following significant changes:

  • Adding four semi-synthetic opioids (hydrocodone, oxycodone, hydromorphone, and oxymorphone) to the drug testing panel, which is “intended to help address the nation-wide epidemic of opioid abuse” and create safer conditions for transportation industries and the public;
  • Adding methylenedioxyamphetamine (MDA) as an initial test analyte because, in addition to being considered a drug of abuse, it is a metabolite of methylenedioxyethylamphetaime (MDEA) and methylenedioxymethamphetamine (“MDMA”), and such testing potentially acts as a deterrent;
  • Removing testing for MDEA from the existing drug testing panel;
  • Removing the requirement for employers and consortium/third party administrators (C/TPAs) to submit blind specimens in order to relieve unnecessary burdens on employers, C/TPAs, and other parties; and
  • Adding three “fatal flaws” to the list of when a laboratory would reject a specimen and modifying the “shy bladder” process so that the collector will discard certain questionable specimens.

The new rule goes into effect on January 1, 2018. Employers who comply with DOT standards when drug testing should modify their drug testing policies accordingly. Employers that are not subject to DOT requirements, but comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs also should consider whether to modify their drug testing policies to comply with the new rules and guidelines.

If you have questions about the new regulations or employee drug testing in general, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment or Workplace Policies and Handbooks Teams.

  By: Bryan Bienias, Esq.

Seyfarth Synopsis: Former management-side labor attorney Peter Robb was confirmed as the General Counsel for the National Labor Relations Board, the last key piece to what many employers hope will result in the Board’s reversals of several Obama-era rulings.

On Wednesday, the U.S. Senate confirmed Peter Robb as the next General Counsel for the National Labor Relations Board.  Robb replaces former President Obama appointee, Richard Griffin, whose term expired at the end of October.

Robb is a former management-side labor and employment attorney and NLRB veteran, serving as field attorney and Chief Counsel to former Board Member Robert Hunter. In his private practice, Robb represented management in various aspects of labor and employment law and published a number of articles critical of some of the Obama-era Board’s more “anti-employer” decisions.

Robb’s ascension as General Counsel, the agency’s chief prosecutor, along with the Board’s newly comprised 3-2 Republican majority — its first in over a decade — sets the stage for the Board to likely begin the process of overturning some of those decisions toward more “business-friendly” policies. Among the rulings many hope to see reversed under this new regime are the Obama Board’s expansion of the joint employer standard, its decisions barring class-action waivers in employment agreements, and its sometimes draconian interpretations on innocuous workplace rules, to name a few.

Only time will tell which cases Robb and the Office of the General Counsel will use as vehicles to facilitate the anticipated reversals of the Obama Board’s more controversial rulings. But for now, it remains business as usual for employers, as the process of litigating these issues up to the newly comprised Board could take several years.

Stay tuned.