A union of undergraduate students working in Dartmouth College’s Dining Hall facilities (unique in that they are not affiliated with an outside organized labor group) recently prevailed in a mail ballot election, and was certified as the bargaining representative for that group on April 7, 2022.Also looming is the prospect of undergraduate student athlete unionization. On September 29, 2021, the NLRB Office of the General Counsel’s issued a memorandum opining that “certain Players” at colleges and universities are employees entitled to labor law rights under the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., and that even classifying them as “mere student-athletes” constitutes a violation of the NLRA. Testing this theory, the National College Players Association has already filed an unfair labor practice charge against the NCAA, the Pac-12 Conference, and UCLA as joint employers.Undergraduate institutions everywhere – particularly those with little to no lived experience with an on-campus union – should be taking notice and taking steps now to develop a responsive plan of action to potential union organizing activity on campus.

Oral argument is likely to take place in late 2017 or early to mid-2018, and a decision will likely follow by June 2018 when the Court completes its next term.Notes:[1] 9 U.S.C. §§ 1, et seq.[2] 29 U.S.C. §§ 151, et seq.[3]See, e.g., DIRECTV, Inc. v. Imburgia, --- U.S. ---, 136 S. Ct. 463, 468-71 (2015); Am. Express Co. v. Italian Colors Restaurant, --- U.S. ---, 133 S. Ct. 2304, 2309-12 (2013); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339-52 (2011).[4]CompuCredit Corp. v. Greenwood, --- U.S. ---, 132 S. Ct. 665, 669 (2012) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)).

ntial emotional distress."SB 428 becomes effective on January 1, 2025. When it goes into effect, an employer will need to show reasonable proof that an employee has suffered unlawful violence or a credible threat of violence by the respondent and that great or irreparable harm would result to an employee or clear and convincing evidence of all of the following:That an employee has suffered harassment by the respondent.That great or irreparable harm would result to an employee.That the course of conduct at issue served no legitimate purpose.That the issuance of the order is not prohibited by subdivision (c).What is unique about SB 428 and its inclusion of harassment is that the law is not tied solely to protected categories under the Fair Employment and Housing Act but can include anyone regardless of sex, age, race, etc.A temporary restraining order is not permitted regarding speech or other activities that are constitutionally protected, protected by the National Labor Relations Act (29 U.S.C. Sec. 151 et seq.), protected by Chapter 11.5 (commencing with Section 3555) of Division 4 of Title 1 of the Government Code, or otherwise protected by Section 527.3 or any other provision of law.Lastly, the bill also requires an employer seeking such a temporary restraining order to provide the employee whose protection is sought the opportunity to decline to be named in the order before filing the petition.Next Steps for EmployersEmployers should take note of this additional recourse that will be available on January 1, 2025, to help them respond to workplace violence issues and ensure a safe workplace environment.

can arise under the other laws within the EEOC’s jurisdiction, including the Age Discrimination in Employment Act of 1967 (ADEA) 29 U.S.C. §621 et seq.On May 5, 2022, the EEOC filed suit against three integrated companies that provide English-language tutoring services to students in China alleging the defendant employer used application software that automatically rejected female applicants over the age 55 and male applicants over the age 60. (EEOC v. iTutorGroup, Inc. et al, Case No. 1:22-cv-2565, E.D.N.Y)). On August 9, 2023, parties filed a joint notice of settlement and a request for approval and execution of a consent decree. This appears to be the first settlement of an AI discrimination lawsuit brought by the EEOC and there are likely more to come.National Labor Relations BoardThe EEOC is not the only “sheriff” flashing its badge and targeting employer use of AI. The National Labor Relations Board (NLRB or Board), which enforces the National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§151-169, has identified certain emerging technologies employing AI as potentially running afoul of Section 7 of the NLRA.Section 7 of the NLRA, which covers most private-sector employers irrespective of whether they are unionized or not. It guarantees employees "the right to... engage in... concerted activities for the purpose of.... mutual aid or protection” as well as the right to refrain from such. 29 U.S.C. §157. Depending upon the partisan makeup of the five-member NLRB, the Board has expansively read Section 7 to protect such activities as employees discussing their wage rates with coworkers, see, e.g., Lowes Home Centers, L.L.C. v. NLRB, 850 F. App'x 886, 887 (5th Cir. 2021), and employee comments on social media regarding workplace complaints. Hispanics United of Buffalo, Inc., 194 L.R.R.M. (BNA) 1303, 2012–13 NLRB Dec. (CCH) P 15656, 2012 WL 6800769 (N.L.R.B. 2012).On October 31, 2022, the General Counsel of the National Labor Relations Board (NLRB) released Memo Number GC 23-02. Nat

se which is narrowly tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications may be lawful.Non-Competition and Non-SolicitationAs Foster Swift Collins & Smith highlighted earlier this year[2], the NLRB’s General Counsel also issued a memorandum advancing the position that except in limited circumstances, non-compete agreements violate the NLRA. The NLRB recently charged a Michigan corporation with an unfair labor practice for an agreement with an employe which broadly prohibited the employee from soliciting the employer’s employees to work for a different employer. In the same case, the NLRB charged the Michigan corporation with an unfair labor practice for broadly prohibiting the employee from soliciting the employer’s customers to discontinue or reduce the volume or scope of that customer relationship.What’s NextFoster Swift Collins & Smith will continue to monitor developments at the NLRB.[1] 29 U.S.C. §§ 151-166.[2] Foster, Swift, Collins & Smith, NLRB General Counsel Targets Non-Compete Agreements, (June 6, 2023) https://www.fosterswift.com/communications-NLRB-Targets-Non-Competes-Generally-Unlawful.html.

Management-side attorneys and the businesses that they represent will be pleased with the Supreme Court’s holding in Glacier Northwest, Inc. v. International Brotherhood of Teamsters.The case concerned the issue of whether the National Labor Relations Act, 29 U.S.C. §§ 151–169 (“NLRA” or the “Act”), preempted a state tort claim seeking damages for harm suffered by their employer, caused by employees’ inaction in failing to deliver concrete that had already been loaded into the employer’s trucks or otherwise taking action to prevent the hardening concrete from damaging the trucks, thus intentionally destroying property owned by Glacier. Notably, the striking employees and their union knew that the trucks had been loaded when they began their strike. An eight-justice majority held that the union and its members were, on the facts of the case, not engaged in protected conduct as that term is defined under the NLRA. Justice Barrett delivered the opinion of the Court, in which the Chief Justice and Justices Sotomayor, Kagan and Kavanaugh joined. Justices Thomas, Gorsuch, and Alito concurred. As against this jurisprudentially diverse array, Justice Jackson was the only dissenter.Conduct That Foreseeably Caused Harm to Employer Property Was Not Protected by the NL

roved in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 399–403 (1983); see also Gen. Motors LLC, 369 NLRB No. 127 (“Under Wright Line, the [NLRB] General Counsel has the initial burden to show that the Section 7 activity was a motivating factor for the discipline, and, if he does, the burden shifts to the employer to prove it would have issued the same discipline even in the absence of Section 7 activity. Consequently, as was not always true under the prior setting-specific standards, an employer may lawfully discipline an employee for abusive conduct if it is unmotivated by Section 7 activity or if it would have issued the same discipline even in the absence of Section 7 activity.”)4 372 NLRB No. 83 (May 1, 2023).5 372 NLRB No. 83 (May 1, 2023); see also Bettcher Mfg. Corp., 76 NLRB 526 (1948) (holding employer could not terminate employee for offensive comments during collective bargaining because “frank, and not always complimentary, exchange of views must be expected and permitted”); 29 U.S.C.A. § 151 (West) (noting the “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association”) (emphasis added).6 245 NLRB 814, 816 (1979).7 372 NLRB No. 83 (May 1, 2023); see also Pier Sixty, LLC, 362 NLRB 505 (2015); Desert Springs, 363 NLRB 1824, 1824 n. 3 (2016) (“In determining whether there is a loss of the Act's protection in a conversation among employees, the weight of the Board's decisions suggests that the appropriate standard is one that considers all the circumstances surrounding the conduct at issue.).8 268 NLRB 1044, 1046 (1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985).9 372 NLRB No. 83 (May 1, 2023) (“Under General Motors, it seems, an employer could legitimately invoke common incivility during Section 7 activity—talking in a loud voice, wearing an angry expression, making a hand gesture, standing up from a chair, using profanity, and

other consideration to support the release of claims.Employers should review its current New Jersey operations, as well as whether out-of-state employees are “reporting to” the New Jersey location. Employers with satellite operations or remote employees that are “reporting to” a New Jersey location may want to consider whether it is possible to change the reporting relationships of these non-New Jersey resident employees.Employers must revisit severance plans, employment policies, and general procedures for obtaining releases from employees in exchange for severance pay to ensure compliance with the law. Employers should consult with legal counsel before taking any such actions, especially when it involves compliance with the notice requirements under the law.***A challenge to the new law is pending in the U.S. District Court for the District of New Jersey. Certain laws appear to provide a basis for a challenge, e.g., ERISA, 29 U.S.C. § 1001, et seq., the National Labor Relations Act, 29 U.S.C. § 151, et seq., and the U.S. Bankruptcy Code. However, the U.S. Supreme Court has held that neither ERISA nor the NLRA preempts a similar mandatory severance pay statute in Maine. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987). In that case, the Supreme Court held that ERISA did not preempt the Maine statute because the statute concerned employee benefits (not regulated by ERISA), rather than employee benefit plans (governed by ERISA). The Court also held that the establishment of mandatory severance in the event of a mass layoff or closing constituted a valid exercise of the state’s police powers. Indeed, the Court described the Maine statute as an “unexceptional exercise of the state’s police power” in the establishment of a minimum labor standard.

Failure to conduct such a review could result in unexpected labor negotiations and disagreements as well as the accompanying undesired expenses. 29 U.S.C. § 151 (2022).Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d at 1123.Id.

The National Labor Relations Act (NLRA) authorizes these collective bargaining agreements. 29 U.S.C. §§ 151-169. Sections 8(e) and (f) of the NLRA, 29 U.S.C. §§ 158(e) and (f).