LACBA Daily eBriefs, November 23, 2022

Employment The Federal Motor Carrier Safety Administration’s decision to preempt California’s meal and rest break rules barred plaintiffs from proceeding with lawsuits that commenced before the decision was made. Valiente v. Swift Transportation of Arizona - filed Nov. 23, 2022 Cite as 2022 S.O.S. 21-55456 To view full text visit: http://sos.metnews.com/sos.cgi?1122//21-55456

NLRB Chairman and General Counsel Send Letter to Appropriators on Budget Crisis

Today, National Labor Relations Board Chairman Lauren McFerran and General Counsel Jennifer Abruzzo sent a letter to congressional appropriators, alerting them to the budget crisis at the NLRB. They explain that the NLRB has received the same nominal appropriation of $274.2 million since FY2014. Adjusting for inflation, the Agency has lost one-quarter of its purchasing power over the past nine years. If the NLRB is flat-funded for an additional year, the Agency will likely be forced to pursue furloughs: “The Agency has already implemented a hiring freeze and, without additional funding, will likely be forced to pursue furloughs. … Further erosion of the Agency’s staff and resources will continue to harm case processing to the significant detriment of both employers and employees.” Read the letter: https://www.nlrb.gov/sites/default/files/2022-11-18-letter-to-appropriators.pdf.

Teresa Poor Named Regional Director of Region 29-Brooklyn

On October 31, 2022, General Counsel Jennifer A. Abruzzo announced the appointment of Teresa Poor as the Regional Director for the Agency’s Region 29 office. With a Regional Office in Brooklyn, New York, Region 29 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the right of workers to act collectively to improve their wages and working conditions throughout Brooklyn, Queens, Staten Island, and Long Island. “Teresa has proven throughout her career at the NLRB to be an exemplary leader and public servant,” said General Counsel Jennifer Abruzzo. “With her commitment to the Agency’s mission, I am confident she will excel in this new role and will undoubtedly work every day to fully effectuate the National Labors Relations Act.” A native of Yakima, Washington, Ms. Poor earned a Bachelor of Arts from Evergreen State College in Washington State and a Master’s of Labor and Industrial Relations from Rutgers University in New Jersey. During her 23-year career with the Agency, in which she served in Regions 2 and 29, Ms. Poor worked as a Labor-Management Relations Examiner, Compliance Officer, Supervisory Examiner, and Assistant to the Regional Director. Prior to her career with the Agency, Ms. Poor worked with unions and research organizations focused on economics and health and safety issues that affect workers in the United States.

NLRB Issues Notice of Proposed Rulemaking on Fair Choice and Employee Voice

The proposed rule addresses Election-Blocking Charges, Voluntary Recognition, and Construction Industry Bargaining Relationships Today, the National Labor Relations Board released a Notice of Proposed Rulemaking (NPRM) inviting public comment on a proposed rule that would rescind a final rule adopted by the prior Board majority on April 1, 2020. That rule, now in effect: (1) allows representation elections to proceed despite pending unfair labor practice charges alleging coercive conduct that would interfere with employee free choice and require a re-run election; (2) allows challenges to the representative status of a union that has been voluntarily recognized based on a showing of majority support among employees before there has been a reasonable period for collective bargaining; and (3) permits election challenges to the long settled representative status of unions representing construction industry employees, despite undisputed evidence of the union’s majority support in detailed language in a collective-bargaining agreement making clear that the employer voluntarily recognized the union based on a showing of majority support. The proposed Fair Choice and Employee Voice rule would restore the Board’s prior law, including the longstanding principles reflected in the traditional “blocking charge” policy first adopted by the Board in 1937; the Board’s “voluntary recognition” bar doctrine first established in 1966 and refined in Lamons Gasket Co., 357 NLRB 934 (2011); and the Board’s approach to voluntary recognition in the construction industry as reflected in Casale Industries, 311 NLRB 951 (1993), and Staunton Fuel & Material, 335 NLRB 717 (2001). “The Board believes, subject to comments, that these proposed changes will better protect workers’ ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining,” said Chairman Lauren McFerran. The proposed rule has three parts, each rescinding a corresponding portion of the Board’s April 2020 final rule. First, the proposed rule would return to the Board’s long-established “blocking charge” policy as most recently reflected in a 2014 rule. Under that approach, when unfair labor practice charges are filed while an election petition is pending, a Regional Director may delay the election if the conduct alleged threatens to interfere with employee free choice. The Board’s view, subject to public comments, is that the proposed rule promotes employee free choice and conserves the Board’s resources, and those of the parties, by ensuring that the Board does not conduct elections—that might well have to be re-run—in a tainted environment. Second, the proposed rule would eliminate the required notice-and-election procedure triggered by an employer’s voluntary recognition of a union based on a showing of majority support among employees. In the NPRM, the Board explained its preliminary view that a voluntary-recognition bar, preventing challenges to the status of a newly recognized union until a reasonable period for collective bargaining has passed—and as reflected in the Lamons Gasket decision—better serves the policies of the National Labor Relations Act by vindicating employee free choice, encouraging collective bargaining, and preserving labor relations stability. The Board noted that under the 2020 rule, employees almost never file election petitions to oust recognized unions, suggesting that voluntary recognition almost always accurately reflects employee free choice. Finally, the proposed rule would return to the Board’s prior approach to voluntary recognition in the construction industry, as reflected in its case law. This would include restoring a six-month limitations period for election petitions challenging a construction employer’s voluntary recognition of a union under Section 9(a) of the Act (as established in Casale Industries). It would also include the principle (established in Staunton Fuel) that sufficiently detailed language in a collective-bargaining agreement can serve as sufficient evidence that voluntary recognition was based on Section 9(a) of the Act. The Board explained its preliminary view, subject to comment, that the 2020 rule had injected uncertainty and unpredictability into construction-industry labor relations. Chairman McFerran was joined by Board Members Gwynne A. Wilcox and David M. Prouty in proposing the new rule. Board Members Marvin E. Kaplan and John F. Ring dissented. Public comments are invited on all aspects of the proposed rule and should be submitted either electronically to regulations.gov, or by mail or hand-delivery to Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. Comments on this proposed rule must be received by the NLRB on or before January 3, 2023. Comments replying to comments submitted during the initial comment period must be received by the Board on or before January 17, 2023. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices

In a new memo, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced her intention to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices through vigorously enforcing current law and by urging the Board to apply settled labor-law principles in a new framework. The memo describes various technologies that are increasingly being used to closely monitor and manage employees. For instance, some employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices. And some employers monitor employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day. Employers may use this data to manage employee productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave, and providing individualized directives throughout the workday. “It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer,” said General Counsel Abruzzo. “Thus, I plan to urge the Board, to the greatest extent possible, to apply the Act to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.” The General Counsel will urge the Board to adopt a new framework for protecting employees from employers’ abuse of technology by holding that an employer has presumptively violated the Act where an employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act. If the employer’s business need outweighs employees’ Section 7 rights, unless the employer demonstrates that special circumstances require covert use of the technologies, she will urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains. The memo also notes that the General Counsel is committed to an interagency approach to these issues, as numerous agencies across the federal government are working to prevent employers from violating federal law using electronic surveillance and algorithmic management technologies. The General Counsel has recently signed agreements with the Federal Trade Commission, the Department of Justice, and the Department of Labor which will facilitate information sharing and coordinated enforcement on these issues.

LACBA Daily eBriefs, October 25, 2022

The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise www.metnews.com. Image removed by sender.NINTH U.S. CIRCUIT COURT OF APPEALS Criminal Law and Procedure 18 U.S.C. §3663(a)(3) grants statutory authority to district courts to award restitution whenever a defendant agrees in a plea agreement to pay restitution. In re Doe v. U.S. - filed Oct. 25, 2022 Cite as 2022 S.O.S. 22-70098 Full text click here > Constitutional Law A district court did not abuse its discretion in reducing the attorney fees and costs payable to a serial Americans with Disabilities Act plaintiff given the routine nature of the work performed by the plaintiff’s attorneys, the lack of meaningful opposition by the defendants and the repetitive nature of high-frequency ADA litigation. Shayler v. 1310 PCH - filed Oct. 24, 2022 Cite as 2022 S.O.S. 21-56130 Full text click here > Torts The Communications Decency Act shielded a social media platform from liability for user-posted content. 47 U.S.C. §230(c)(1) immunity does not apply to child sex trafficking claims if the conduct underlying the claim also violates 18 U.S.C. § 1591; the availability of this immunity exception is contingent upon a plaintiff proving that a defendant-website’s own conduct—rather than its users’ conduct—resulted in a violation of §1591. Does v. Reddit - filed Oct. 24, 2022 Cite as 2022 S.O.S. 21-56293 Full text click here > Criminal Law and Procedure A district court did not clearly err in finding a defendant qualified as an organizer or leader of the criminal conspiracy under USSG §3B1.1(c) where he had the necessary influence and ability to coordinate the behavior of others so as to achieve a desired criminal result, and his recruitment efforts were indicative of his playing a leadership or central organizational role in a conspiracy. U.S. v. Kabir - filed Oct. 24, 2022 Cite as 2022 S.O.S. 21-50141 Full text click here > Image removed by sender.CALIFORNIA COURT OF APPEAL Contracts The standard for prevailing party status under Code of Civil Procedure §1032 does not govern the prevailing party analysis for purposes of attorney fees pursuant to Civil Code §8800. Vought Construction v. Stock - filed Oct. 24, 2022, Fourth District, Div. Four Cite as 2022 S.O.S. 5390 Full text click here > Employment An employer did not meet its burden to show that there was no triable issue of material fact regarding an employee’s claim for unpaid wages where the employer could and did track the exact time in minutes that an employee worked each shift and those records showed that the employee was not paid for all the time he worked because of the employer’s quarter-hour rounding policy.

NLRB General Counsel Issues Memo on New 10(j) Injunction Casehandling Instructions to Increase Voluntary Settlements and Streamline Processes

Today, NLRB General Counsel Jennifer Abruzzo issued a memorandum to all field offices announcing measures to improve the Agency’s effectiveness in securing relief under Section 10(j) of the National Labor Relations Act. The General Counsel lays out measures that the Agency will take to better focus resources: Regions will now seek to settle the Section 10(j) aspect of cases warranting interim relief when efforts to settle the administrative case are unsuccessful. Charged parties will be given the opportunity to voluntarily agree to an interim agreement that includes remedies, such as reinstating alleged discriminatees or agreeing to bargain, pending final resolution of the administrative case by the Board. If the parties do not reach a settlement on interim relief, if it would be futile to seek such a settlement, or if a party agrees to such a settlement but violates its terms, the Region may take all appropriate actions, including seeking authorization to petition for injunctive relief in federal district court. In those instances, the Regions and the Injunction Litigation Branch will utilize streamlined 10(j) authorization procedures to facilitate more efficient processing and a more effective process for obtaining relief as quickly as possible. “Section 10(j) is one of the most important tools available to effectively enforce the Act. It is my hope that this initiative will result in an increase in voluntary agreements to obtain crucial interim remedies, will reduce the need for district court litigation, and will conserve the resources of the Agency and all parties,” said General Counsel Jennifer Abruzzo. Today’s memo builds on previous memos that address the importance of injunctive relief. In February, the General Counsel announced an initiative to seek injunctions in certain cases where workers have been subject to threats or other coercive conduct during an organizing campaign. Last August, the General Counsel released a memorandum underscoring the importance of 10(j) injunction proceedings and affirming the Agency’s priority in continuing efforts to obtain immediate relief in cases that present a significant risk of remedial failure. For more information, visit us at http://beverlyhillsimmigrationlaw.blogspot.com/.