Section 152 - Definitions

27 Analyses of this statute by attorneys

  1. Project Labor Agreement Requirement for Large-Scale Construction Becomes Effective Jan. 22

    Holland & Knight LLPJanuary 15, 2024

    quirement as difficult to meet.Notes EO 14063: Use of Project Labor Agreements for Federal Construction Projects, 87 Fed. Reg. 7363 (Feb. 9, 2022). PLA Final Rule – Federal Acquisition Regulation: Use of Project Labor Agreements for Federal Construction Projects, 88 Fed. Reg. 88708 (Dec. 22, 2023) (effective Jan. 22, 2024). Prop. Treas. Reg. § 1.45-8(e)(2)(v); Prop. Treas. Reg. § 1.45-7(c)(6)(ii). The relevant FAR clause defines PLAs as "a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f)." FAR 22.502. The final rule defines "construction" as "construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property." PLA Final Rule, 88 Fed. Reg. at 88727. "Labor organization means a labor organization as defined in 29 U.S.C. 152(5) of which building and construction employees are members." See 29 U.S.C. 152(5) (defining "labor organization" as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work"). EO 14063, 87 Fed. Reg. at 7365. "The exception shall be based on one or more of the following factors: (A) the project is of short duration and lacks operational complexity; (B) the project will involve only one craft or trade; (C) the project will involve specialized construction work that is available from only a limited number of contractors or subcontractors; (D) the agency's need for the project is of such an unusual and compelling urgency that a project labor agreement would be impracticable." "A likely reduction in the number of potential offerors is not, by itse

  2. NLRB Revives A More Stringent Standard For Independent Contractor Classification

    CDF Labor Law LLPCarolina SchwalbachJune 21, 2023

    Section 2(3) of the National Labor Relations Act (the “Act”), as amended by the Taft Hartley Act in 1947, excludes from the definition of a covered “employee” “any individual having the status of an independent contractor.” 29 U.S.C. § 152(3). As such, the issue of whether an individual is an “employee” or “independent contractor” has been an issue of great importance in determining whether workers are entitled to the protections of the Act (including the right to unionize and engage in concerted activity). In 2014, in FedEx II, the Board reaffirmed longstanding principles and asserted that its inquiry in determining independent contractor status would be guided by the non-exhaustive common-law factors enumerated in the Restatement (Second) of Agency, Section 220 (1958), which are as follows:the extent of control which, by the agreement, the master may exercise over the details of the work;whether or not the one employed is engaged in a distinct occupation or business;the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;the skill required in the particular occupation;whether the employer or the workman supplie

  3. Colorado Significantly Expands the Rights of Public Employees at Hospitals, Universities, Schools, and Special Districts

    LittlerJune 15, 2023

    re of the risks associated with possible violations given the possible breadth of liability.Note, however, that the Division may not adjudicate such claims until July 1, 2024, under Section 4 of the Act. There is also no private right of action in court or any forum beyond the Division.11ConclusionThe Protections for Public Workers Act represents a significant change to the law for public employees, and manifests yet another step in broadening Colorado public employees’ rights to engage in concerted activity. Before the August 7, 2023 effective date, affected employers should consider:Training supervisors and human resources professionals on the rights and obligations under the new Act;Carefully reviewing policies to ensure broadly applicable policies do not encroach on the new rights; andConnecting with experienced labor counsel when confronted with possible protected activity to determine an appropriate, risk-adjusted, approach.*Summer Associate in Littler’s Denver office.Footnotes1 29 U.S.C. §152(2).2 29 U.S.C. § 157.3 § 8-3-104, C.R.S.4See § 24-50-1102(3), C.R.S.5See § 8-3.3-102(6), C.R.S.6 See § 29-33-103, C.R.S.7See, e.g., § 29-5-205, C.R.S.8City & Cty. of Denver v. Denver Firefighters Local No. 858, AFL-CIO, 663 P.2d 1032, 1039 (Colo. 1983).9 § 29-33-102(7), C.R.S.10 C.R.S. § 24-34-402.5.11 § 29-33-105(3), C.R.S.

  4. NLRB General Counsel Says Non-Competes Are Unlawful

    Smith AndersonJune 15, 2023

    ion 7 of the Act protects the rights of employees to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. It is unlawful for employers to interfere with, restrain, or coerce employees in their exercise of such rights. 29 U.S.C. § 158(a)(1). Violations are subject to civil and criminal penalties under the Act. Notably, while the Act applies to both unionized and non-unionized workforces, it does not apply to supervisors, who are defined to include employees who have authority to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action,” as long as exercising such authority requires “the use of independent judgment.” 29 U.S.C. § 152(11).According to the Memorandum, non-competes “reasonably tend to chill employees” in the exercise of their rights under the Act. Non-competes do so where they “could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities.” Without unfettered access to other employment opportunities, employees may be chilled from exercising their rights under the Act for fear of retaliation from their current employers. The Memorandum identifies several activities allegedly chilled by non-competes, including concertedly threatening to resign to demand better working conditions or seeking or accepting employment with a local competitor to obtain better working conditions.As a result, the Memorandum concludes, non-competes violate the Act by chilling the exercise of employees’ rights under the Act “unless the provision is narrowly tailored to special circumstances justifying the infringement on employee rights.” The

  5. Did the NLRB Preempt Non-Compete Litigation?

    Seyfarth Shaw LLPAlex MeierJune 6, 2023

    s not have the right to engage in concerted action. Without some theoretical impingement on Section 7 rights, the NLRB lacks any arguable basis to take action involving a statutory supervisor’s restrictive covenants.But seasoned restrictive covenant litigators should understand this memo has the potential to create a lot of mischief in employee departure litigation. It will be critical to have counsel experienced in both restrictive covenant litigation and NLRB proceedings. Fortunately, Seyfarth fits the bill on both fronts. A statutory supervisor is “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U.S.C. § 152(11).

  6. NLRB General Counsel Seeks to Outlaw Most Noncompetition Agreements

    K&L Gates LLPJune 2, 2023

    nce protecting their businesses with the possibility that giving or enforcing noncompetition agreements could subject them to imminent litigation before the Board and exposure to still undefined remedies owed to the covered employees. 1 National Labor Relations Board Memorandum GC 23-08 (May 30, 2023).2 National Labor Relations Board Memorandum GC 23-05 (Mar. 22, 2023). See Michael A. Pavlick & Taylor J. Arluck, NLRB General Counsel Issues Compliance Guidance on Recent Ruling Limiting Severance Agreements, K&L GATES HUB (Mar. 24, 2023), https://www.klgates.com/NLRB-General-Counsel-Issues-Compliance-Guidance-on-Recent-Ruling-Limiting-Severance-Agreements-3-24-2023.3See Michael A. Pavlick & Taylor J. Arluck, NLRB Imposes Broad Restrictions on Severance Agreements, K&L GATES HUB (Feb. 24, 2023), https://www.klgates.com/NLRB-Imposes-Broad-Restrictions-on-Severance-Agreements-2-24-2023.4See General Counsel’s March 7, 2022 Brief to the Board, Stericycle, Inc., Cases 04-CA-137660 et al.5 See 29 U.S.C. § 152(3). A “supervisor” is defined under the NLRA as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Id. § 152(11).6 National Labor Relations Board Memorandum GC 23-08 (May 30, 2023).7 Non-Compete Clause Rule, 88 Fed. Reg. 3482, 3504; see Lauren Norris Donahue et al., FTC Proposes Sweeping Ban on Employee Noncompete Clauses: What Employers Need to Know, Proposed Alternatives, and Opportunity for Public Comment, K&L GATES HUB (Jan. 6, 2023), https://www.klgates.com/FTC-Proposes-Sweeping-Ban-on-Employee-Noncompete-Clauses-What-Employers-Need-to-Know-Proposed-Alternatives-and-Opportunity-for-Public-Comment-1

  7. National Labor Relations Board’s general counsel piggybacks FTC in memo claiming most non-compete agreements violate the NLRA

    Eversheds Sutherland (US) LLPJune 2, 2023

    agreements. Additionally, employers should consider whether they wish to impose non-competes on non-management employees. Another recommended area of review is the non-solicitation of customer restriction, which is often equated by states to non-competes. Employers would be wise to monitor these issues as they emerge.__________On January 5, 2023, the Federal Trade Commission (FTC) proposed a New Rule to ban non-compete clauses, which “hurt workers and harm competition.”It is worth noting that the NLRA does not cover “supervisors”, which is defined as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U.S.C. §§ 152(11). Typically, these are the employees who have non-compete agreements.Some states, such as California, North Dakota, and Oklahoma have effectively prohibited post-termination non-competes.[View source.]

  8. Employment Flash - April 2023

    Skadden, Arps, Slate, Meagher & Flom LLPApril 14, 2023

    y compelled to do so by a court or administrative agency of competent jurisdiction”; and (2) required employees “not to make statements to [e]mployer’s employees or to the general public which could disparage or harm the image of [e]mployer, its parent and affiliated entities and their officers, directors, employees, agents and representatives” were unlawful, and therefore the severance agreements were as well.Note that the McLaren Macomb decision does not apply to a separation agreement proffered to a “supervisor,” which is defined under the NLRA as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U.S.C. § 152(11). Determination of whether an individual is a “supervisor” under the NLRA is a fact-specific inquiry.Supreme Court Upholds FLSA Salary Basis Requirement for Exempt EmployeesOn February 22, 2023, the U.S. Supreme Court issued its decision in Helix Energy Solutions Group, Inc. v. Hewitt, 143 S. Ct. 677, upholding the requirement under the Fair Labor Standards Act that all employees classified as exempt from minimum wage and overtime laws be paid on a salary basis.Hewitt involved an oil rig worker named Michael Hewitt, who earned over $200,000 annually while working 12 hours a day, seven days a week (84 hours a week) for 28 days, followed by 28 days off, and who was paid at a daily rate via a paycheck issued every two weeks. Mr. Hewitt was classified as an exempt employee and thus, not paid overtime pay. Mr. Hewitt then sued Helix, alleging that because he was not paid on a salary basis, he was improperly classified as exempt and owed overtime pay.In a 6-3 decision, Justice Elena Kagan wr

  9. Standard Severance Agreements Require Review

    Poyner Spruill LLPKaitlin DewberryApril 10, 2023

    ers can narrow non-disparagement clauses to prohibit statements that are “maliciously untrue such that they are made with knowledge of their falsity or with reckless disregard for their truth or falsity.”The most conservative option would be for employers to remove confidentiality and non-disparagement clauses in severance agreements for employees covered by the NLRA. Employers will need to consider their goals in offering severance agreements. If the primary goal is a release of claims by the employee, then removal of these provisions might be of little consequence because it will likely have no impact on the scope of the release.While the Memo is not legally binding and is only meant to guideNLRBfield offices, it reflects the NLRB’s aggressive stance on severance and other release agreements. Therefore, employers should review their approach to severance payments and their form severance agreements with counsel. For more information on the McLaren decision,see our prior alert. Under 29 U.S.C.A. § 152(11) of the NLRA, “supervisors” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

  10. NLRB Holds Employers May Not Offer Severance Agreements That Require Employees to Broadly Waive NLRA Labor Rights

    Cole SchotzRandi W. KochmanMarch 8, 2023

    s to employees was not unlawful.In McLaren Macomb, the NLRB held that a severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, and that an employer’s proffer of such agreements to employees is unlawful. In making that determination, the NLRB stated it will examine, as pre-Baylor precedent did, the language of the agreement, including whether any relinquishment of Section 7 rights is narrowly tailored.Members Wilcox and Prouty joined Chairman McFerrin in the decision. Member Kaplan dissented, reaching the same result but without abrogating the Baylor or IGT decisions.The effective date of the decision is February 21, 2023. Application of the Order accompanying the McLaren Macomb decision is expressly limited to include the eleven (11) permanently furloughed employees and their collective bargaining unit, and excludes “supervisors” (i.e., managers), as defined under the NLRA. See 29 U.S.C.A. § 152. Employers are reminded that the NLRA applies with equal force to ALL employers, not just Union employers.Employers offering severance packages with confidentiality and/or non disparagement provisions should consult with counsel in light of this critical decision.