Board Modifies Standard Governing Off-Duty Workplace Access for Employees of Contractors

12/16/2022 12:30 PM EST December 16, 2022 Today, the Board issued a decision in Bexar County II, restoring the rights of workers employed by a contractor to engage in protected concerted activity in their workplace. The new decision overturns Bexar County I, 368 NLRB No. 46 (2019)—which was sent back to the Board for reconsideration by the D.C. Circuit Court of Appeals—and makes clear that a property owner may only exclude the employees of its contractors from engaging in protected activity on the worksite if such activity would significantly interfere with the use of the property, or where exclusion is justified by another legitimate business reason. Bexar County II thus reestablishes the standard originally articulated by the Board in New York New York Hotel & Casino, 356 NLRB 907 (2011). The Board reasoned—in line with the D.C. Circuit’s concerns—that the Bexar County I standard undermined contractor employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act without rational justification. Returning to the New York New York standard properly accommodates contractor employees’ rights under federal labor law with the property owner’s legitimate interests, and avoids creating incentives for employers to structure work relationships to avoid direct hiring. “For contractor employees, the right to exercise their Section 7 rights at their workplace – where they interact with their coworkers and are most impacted by their employer’s decisions—is critical to making the protections of the Act a reality,” said Chairman Lauren McFerran. “Today’s decision ensures that contract employees’ rights are protected and respected in a manner appropriate to the nature of their employment.” Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Kaplan and Ring dissented.

NLRB Protects Workers from Employer Coercion During Investigation of Unfair Labor Practice Complaints

12/15/2022 12:29 PM EST Today, the National Labor Relations Board issued a decision in Sunbelt Rentals, Inc., reaffirming its longstanding approach to protecting employees from coercion when they are interviewed by employers preparing for unfair labor practice proceedings before the Board. This decision follows the Board’s Notice and Invitation to File Briefs seeking public input regarding whether or not to adhere to the standard first adopted in 1964 in Johnnie’s Poultry, 146 NLRB 770 (1964), which found that such interviews violated the National Labor Relations Act unless the employer gave the employee specific assurances. After considering public comment, a Board majority consisting of Chairman McFerran and Members Wilcox and Prouty found that the Johnnie’s Poultry standard effectively balances employers’ legitimate need to prepare a defense to an unfair labor practice allegation with employees’ statutory right to engage in protected concerted activity free from employer interference, and decided to adhere to the Johnnie’s Poultry standard in whole. The standard states: “The employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees.” “Today’s decision maintains a well-understood 58-year standard that has proven successful in balancing employer needs and employee rights, while protecting the integrity of the Board’s process,” said Chairman Lauren McFerran. “Because of the strong possibility of coercion in an employer interview about unfair labor practice issues, employees need protection. This familiar, bright-line test is easy for employers to comply with and brings certainty to the administration of the Act.” Members Kaplan and Ring dissented.

Board Modifies Framework for Appropriate Bargaining Unit Standard

12/14/2022 12:44 PM EST December 14, 2022 Today, the National Labor Relations Board issued a decision in American Steel Construction, Inc., in which the Board modified the test used to determine whether additional employees must be included in a petitioned-for unit in order to render it an appropriate bargaining unit. The decision returns the Board to its prior test governing such determinations, as set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), overruling PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019). In the decision, the Board reaffirmed its long-standing principle that employees in the petitioned-for unit must be “readily identifiable as a group” and share a “community of interest.” However, where a party argues that a proposed unit meeting these criteria must include additional employees, the Board reaffirmed that the burden is on that party to show that the excluded employees share an “overwhelming community of interest” to mandate their inclusion in the bargaining unit. “The Board’s task in assessing the appropriateness of bargaining units is to ensure that workers enjoy—in the words of the National Labor Relations Act— ‘full freedom of association,’” said Chairman Lauren McFerran. “Returning to the Specialty Healthcare standard is consistent with this principle, ensuring that workers have the ability to organize in the unit of their choosing, so long as it is not arbitrary or irrational.” The decision follows the Board’s Notice and Invitation to File Briefs asking parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining if a petitioned-for bargaining unit is an appropriate unit. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Kaplan and Ring dissented.

Board Rules Remedies Must Compensate Employees for All Direct and Foreseeable Financial Harms

12/13/2022 01:31 PM EST December 13, 2022 In a decision issued today in Thryv, Inc., the Board clarified its make-whole remedy to expressly ensure that workers who are victims of labor law violations are compensated for all “direct or foreseeable pecuniary harm” suffered as a result of those unfair labor practices. This decision follows the Board’s Notice and Invitation to File Briefs asking parties to weigh in on whether the Board should modify its make-whole remedy. The decision explains that, in addition to the loss of earnings and benefits, victims of unfair labor practices may incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. The Board determined that compensation for those losses should be part of the standard, make-whole remedy for labor law violations. The Board explained that the General Counsel will be required to present evidence in the compliance proceeding proving the amount of the financial harm, that it was direct or foreseeable, and that it was due to the unfair labor practice. The respondent employer or union would then have the opportunity to rebut that evidence. “Employees are not made whole until they are fully compensated for financial harms that they suffered as a result of unlawful conduct,” said NLRB Chairman Lauren McFerran. “The Board clearly has the authority to comprehensively address the effects of unfair labor practices. By standardizing the Board’s make-whole relief to fully include the direct or foreseeable financial harms suffered by affected employees we will better serve the important goals of the National Labor Relations Act.” This clarification to the Board’s remedy will apply in every case in which the Board’s standard remedy would include make-whole relief for employees. The Board will apply this remedy retroactively to all cases currently pending. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Ring and Kaplan dissented.

NINTH U.S. CIRCUIT COURT OF APPEALS

Employment Law Where the regional director of the National Labor Relations Board secured a preliminary injunction against an employer for alleged unfair labor practices, once National Labor Relations Board has resolved the merits of the unfair labor practice complaint, an appeal of the grant of the preliminary injunction was not moot since such a dispute is capable of repetition, yet evading review. The district court improperly determined that Frank v. HTH Corp. required it to presume irreparable harm based on its finding that the director had a likelihood of success on the merits on his claims. Hooks v. Nexstar Broadcasting - filed Dec. 5, 2022 Cite as 2022 S.O.S. 21-35252 For full text click link:http://sos.metnews.com/sos.cgi?1122//21-35252

NLRB Extends Time for Submitting Comments on the Proposed Fair Choice and Employee Voice Rule

To allow sufficient time for the public to file initial comments, the National Labor Relations Board (NLRB) has extended the deadline for submitting comments on its proposed rule addressing blocking charges, voluntary recognition, and construction industry bargaining relationships under the National Labor Relations Act. Comments may now be filed on or before Thursday, February 2, 2023. Comments replying to the comments submitted during the initial comment period must be received by the Board on or before Thursday, February 16, 2023. Absent extraordinary circumstances, no further extensions of the comment deadline will be granted. The Federal Register is expected to announce and publish this extension of time later this week. The proposed 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). For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

NLRB Region-29 Wins Federal Court Order Requiring Amazon to Cease and Desist from Firing Employees for Protected Activities

Staten Island, New York – On November 18, 2022, Judge Diane Gujarati of the United States District Court for the District of Eastern New York issued a Section 10(j) injunction against Amazon.com Services LLC directing Amazon to cease and desist from discharging employees, and from engaging in any like or related conduct, in retaliation for employees engaging in protected activities. The injunction also directs Amazon to post, distribute, and read the Court’s order to employees at the Employer’s Staten Island facility (“JFK8”). The injunction was issued based on a petition for Section 10(j) injunctive relief filed by Kathy Drew King, former Regional Director of Region 29 of the National Labor Relations Board (NLRB). Section 10(j) of the National Labor Relations Act (NLRA) authorizes the NLRB to seek injunctions against employers and unions in federal district courts to ensure that employees' rights will be adequately protected from remedial failure due to the passage of time. The petition alleged that Amazon unlawfully fired an employee at JFK8 for advocating, with his co-workers, for workplace health and safety protections in light of the COVID-19 pandemic and by protesting with his co-workers Amazon’s failure to provide greater safety protections to employees. While the injunction does not order interim reinstatement of the employee at this time, it does order Amazon to cease and desist from further discharging any employees for protected activities under the NLRA, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the National Labor Relations Act. If Amazon violates the cease-and-desist order, it could be held in contempt by the court. “The Judge’s order in this case recognizes Amazon’s unlawful conduct and provides the full force of a federal court injunction to prohibit Amazon from further discharging employees for engaging in protected concerted activity,” said Region 29 Brooklyn Director Teresa Poor. “This relief is critical to ensure that Amazon employees can fully and freely exercise their rights to join together and improve their working conditions, including by forming, assisting, or joining a union.” Field Attorneys Matthew Jackson and Evamaria Cox of the NLRB’s Region 29 represented Regional Director Poor in the Section 10(j) proceedings before Judge Gujarati.

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/.

Board Updates Considerations for Directing Mail-Ballot Elections

Today, the Board issued a decision in Starbucks Corporation, updating the considerations that guide Regional Directors in exercising their discretion in determining whether an election should be conducted by mail ballot, as opposed to an in-person manual-ballot election, due to COVID-19-related conditions. The decision, based on an election held in a Starbucks coffee shop in Seattle, modified one of the six factors in the Board’s 2020 decision in Aspirus Keweenaw. Previously, Aspirus factor 2 permitted Regional Directors the discretion to direct mail-ballot elections based on either a recent increase in new confirmed COVID-19 cases or recent testing positivity rates in the county encompassing the employer’s facility, using data collected primarily by state and local governments. Today’s decision changes factor 2, which now allows Regional Directors the discretion to order a mail-ballot election in communities where the Centers for Disease Control (CDC) has determined that the risk of COVID-19 transmission in a particular community is “high,” based on the CDC’s county-based community level tracker. The remaining five factors of Aspirus remain the same. The Board decided to apply this latest Starbucks decision prospectively only, thus leaving undisturbed the mail-ballot election conducted in this case and other previously ordered mail-ballot elections. Accordingly, the Region will now proceed to open and count the ballots, which have been held pending this decision, to determine the employees’ wishes regarding union representation. “State and local governments often no longer provide the COVID-19 data in the manner that they did when the 2020 Aspirus decision was issued. Using the CDC’s tracker instead will allow Regional Directors to easily and consistently evaluate the safety of conducting in-person elections, while minimizing delay caused by disputes over the appropriate interpretation and application of COVID-19 data,” said Chairman Lauren McFerran. Chairman McFerran was joined by Board Members Wilcox and Prouty in making the update. Members Ring and Kaplan agreed that Aspirus should be revisited, but dissented from the majority’s decision to revise Aspirus without seeking public input. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html

Carla K. Coffman Named Assistant to the Regional Director in NLRB Region 14—St. Louis

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Carla K. Coffman as the Assistant to the Regional Director of Region 14. With a Regional Office in St. Louis, Missouri, a Subregional Office in Overland Park, Kansas, and a Resident Office in Tulsa, Oklahoma, the staff of Region 14 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the rights of employees throughout areas of Kansas, Oklahoma, Nebraska, Missouri, and Illinois. In her new position working in the Overland Park, Kansas office, Ms. Coffman will assist Regional Director Andrea J. Wilkes in the administration and enforcement of the National Labor Relations Act. A Kansas native, Ms. Coffman began her career with the Agency in 1991 as a Clerk-Stenographer (Group Secretary) and a year later was promoted from Secretary to the Regional Attorney. She entered the Bridge Program in 1996 and three years later, she was promoted to the position of Field Examiner. In this capacity, Ms. Coffman regularly handled complex investigations and elections and served as a mentor to many newer agents. In 2019, Ms. Coffman was promoted to the position of Supervisory Field Examiner, where she supervised a team of Field Attorneys and Field Examiners. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

NLRB Region-15 Wins Injunction Requiring Starbucks to Rehire Seven Unlawfully Fired Workers, Post the Court’s Order, and Cease and Desist from Unlawful Activities

On August 18, 2022, U.S. District Judge Sheryl H. Lipman of the District Court of Western Tennessee issued an injunction requiring Starbucks to reinstate seven unlawfully fired workers, rescind and expunge unlawful discipline issued to an employee, post the Court’s Order and translations in other languages, and cease and desist from unlawful activities. The injunction was issued based on a petition for temporary injunctive relief filed by Region 15 Regional Director Kathleen McKinney in May. Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations. The petition explained that, after learning about the organizing effort, Starbucks directed a wide variety of coercive measures at its employees, including: disciplining the employee responsible for starting the campaign; more closely supervising its employees; closing the area of the store on days organizers had previously invited the public and customers to come to show support for the campaign; and removing all pro-union materials from the community bulletin board inside the store, including notes authored by customers expressing support for the employees and their campaign. Then, following increased media coverage and public support for the campaign, Starbucks terminated seven Union activists all on the same day, including five of the six members of the union organizing committee. "Today's federal court decision ordering Starbucks to reinstate the seven unlawfully fired Starbucks workers in Memphis is a crucial step in ensuring that these workers, and all Starbucks workers, can freely exercise their right to join together to improve their working conditions and form a union,” said NLRB General Counsel Jennifer Abruzzo. “Starbucks, and other employers, should take note that the NLRB will continue to vigorously protect workers’ right to organize without interference from their employer." “I’m proud of my employees for their hard work on this case,” said Region 15-New Orleans Regional Director Kathleen McKinney. “Region 15’s staff is dedicated to effectuating the National Labor Relations Act—including ensuring workers’ ability to freely choose whether or not they want union representation.” A union election was held at the Memphis store at which this unlawful activity occurred. The workers voted for representation by Workers United and the representative was certified on June 15, 2022. The employer must now bargain in good faith with the union. For more information contact us at: http://www.beverlyhillsemploymentlaw.com/

Lanita Cravey Named Birmingham, Alabama Resident Officer

August 10, 2022 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Lanita Cravey as Resident Officer of the Agency’s Birmingham Resident Office, which reports to the Region 10-Atlanta Regional Office. In her new position, Ms. Cravey will assist Regional Director Lisa Y. Henderson in enforcing the National Labor Relations Act in the 41 counties in north and central Alabama. A native of Alabama, Lanita Cravey graduated from Birmingham-Southern College in 2000 with a Bachelor of Science degree. Thereafter, she joined the United States Navy and received her commission via Officer Candidate School in Pensacola, Florida. After military service, Ms. Cravey began working in the Agency’s Birmingham Resident Office in 2004. While working full-time, she earned a Master of Business Administration degree in 2007 from the University of Alabama in Birmingham. In 2009, she was converted to a Labor Management Relations Field Examiner via the Bridge Program. For more information, contact us at: http://www.beverlyhillsimmigrationlaw.com/

Erickson C. N. Karmol Named Regional Attorney in Region 7-Detroit

August 10, 2022 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Erikson C. N. Karmol as the Regional Attorney of the NLRB Region 7-Detroit. In his new position, Mr. Karmol will assist Regional Director Elizabeth Kerwin in the administration and enforcement of the National Labor Relations Act in Michigan. Mr. Karmol, a Toledo, Ohio native, received his Bachelor of Arts degree in Economics in 1993 and Master of Arts in Labor and Industrial Relations in 1994 from the University of Cincinnati. Mr. Karmol also earned a Professional in Human Resources certification. In 1997, he earned his Juris Doctor degree from the University of Toledo. That same year, Mr. Karmol began his career with the Agency as a Field Attorney in Region 7. Mr. Karmol received a Labor Fellowship with the Partners of the Americas in 2005. He was promoted to Supervisory Field Attorney in 2006 and promoted to Deputy Regional Attorney in 2008. For more information, contact us at: http://www.beverlyhillsimmigrationlaw.com/

Renee McKinney Named Regional Attorney in Region 6-Pittsburgh

July 21, 2022 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Renee McKinney as the Regional Attorney of the NLRB Region 6-Pittsburgh. In her new position, Ms. McKinney will assist Regional Director Nancy Wilson in the administration and enforcement of the National Labor Relations Act in parts of Maryland, Pennsylvania, Virginia, and West Virginia. Ms. McKinney, a Detroit, Michigan native, graduated with a Bachelor of Arts degree in History and a Master of Library and Information Studies degree with a concentration in Archives and Records Management from the University of Michigan. She earned a Juris Doctor degree with a certificate in Labor and Employment Law from the Illinois Institute of Technology Chicago-Kent College of Law. Ms. McKinney began her career at the Board as an Honors Attorney in Headquarters in 2008. She subsequently worked as an attorney in the Appellate and Supreme Court Litigation Branch , Region 13 in Chicago, and Region 7 in Detroit. In 2021, Ms. McKinney was selected for a Supervisory Attorney position in Region 6 in Pittsburgh. For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

Julie Kaufman Named Regional Attorney in NLRB Region 22-Newark

July 21, 2022 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Julie Kaufman as the Regional Attorney of the NLRB Region 22-Newark, New Jersey. In her new position, Ms. Kaufman will assist Regional Director Suzanne Sullivan in the administration and enforcement of the National Labor Relations Act in parts of New Jersey. Originally from Glen Cove, New York, Ms. Kaufman graduated in 1985 from Vassar College with a Bachelor of Arts degree in Political Economics and History. In 1988, she received a Juris Doctor from the State University of New York at Buffalo School of Law. That same year, Ms. Kaufman began her career with the Agency as a Field Attorney in Region 22. She was promoted to Deputy Regional Attorney in 2009. For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

Meda v. Autozone - filed July 19, 2022, Second District, Div. Three

Where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry as to whether an employer has provided suitable seating may be fact-intensive and may involve a multitude of job and workplace-specific factors which may not be amenable to resolution by a motion for summary judgment. Meda v. Autozone - filed July 19, 2022, Second District, Div. Three Cite as 2022 S.O.S. 3119 For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

Evenskaas v. California Transit - filed July 15, 2022, Second District, Div. Seven

Constitutional Law Paratransit services involve interstate commerce for purposes of the Federal Arbitration Act. Evenskaas v. California Transit - filed July 15, 2022, Second District, Div. Seven Cite as 2022 S.O.S. 3084

National Labor Relations Board and Federal Trade Commission Forge New Partnership to Protect Workers from Anticompetitive and Unfair Labor Practices

National Labor Relations Board and Federal Trade Commission Forge New Partnership to Protect Workers from Anticompetitive and Unfair Labor Practices 07/19/2022 11:16 AM EDT July 19, 2022 Today, National Labor Relations Board (NLRB) General Counsel Jennifer A. Abruzzo and Federal Trade Commission (FTC) Chair Lina M. Khan executed a Memorandum of Understanding (MOU) forming a partnership between the agencies that will promote fair competition and advance workers’ rights. The agreement enables the NLRB and FTC to closely collaborate by sharing information, conducting cross-training for staff at each agency, and partnering on investigative efforts within each agency’s authority. The MOU identifies areas of mutual interest for the two agencies, including: labor market developments relating to the “gig economy” such as misclassification of workers and algorithmic decision-making; the imposition of one-sided and restrictive contract provisions, such as noncompete and nondisclosure provisions; the extent and impact of labor market concentration; and the ability of workers to act collectively. “Workers in this country have the right under federal law to act collectively to improve their working conditions. When businesses interfere with those rights, either through unfair labor practices, or anti-competitive conduct, it hurts our entire nation,” said NLRB General Counsel Jennifer A. Abruzzo. “This MOU is critical to advancing a whole of government approach to combating unlawful conduct that harms workers.” “We’re committed to using all the tools at our disposal to promote free and fair labor markets in which companies must compete with each other to attract and retain workers,” said FTC Chair Lina M. Khan. “This agreement will help advance our mission to crack down on anticompetitive mergers and unfair practices that deny workers and their families the pay, benefits, and conditions they deserve.” The NLRB also recently joined the FTC’s Consumer Sentinel Network (CSN) . CSN is an investigative online tool and complaint database for law enforcement agencies. It contains millions of consumer complaints about scams, identity theft, Do Not Call Registry violations, and more. In February, General Counsel Abruzzo issued a memorandum to all field offices, committing to working closely with other federal agencies to fully effectuate the mission of the National Labor Relations Act (NLRA) and take action on interagency collaborations outlined in the White House Task Force on Worker Organizing and Empowerment report. For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

Correction: First Three Quarters' Union Election Petitions Up 58%, Exceeding All FY21 Petitions Filed

Correction: First Three Quarters' Union Election Petitions Up 58%, Exceeding All FY21 Petitions Filed 07/15/2022 04:16 PM EDT July 15, 2022 ** The NLRB’s July 13th press release used an incorrect date range from which the data was calculated. The increase in union election petitions has been revised from 56% to 58%. The increase in unfair labor practice charges has been revised from 14.5% to 16%. ** During the first nine months of Fiscal Year 2022 (October 1–June 30), union representation petitions filed at the NLRB have increased 58%—up to 1,892 from 1,197 during the first three quarters of FY2021. By May 25, FY2022 petitions exceeded the total number of petitions filed in all of FY2021. At the same time, unfair labor practice charges have increased 16%—from 11,082 to 12,819. A representation petition is filed by employees, unions, or employers with an NLRB Field Office to have the NLRB conduct an election to determine if employees wish to be represented by a union. The Field Office investigates the petitions and, if meritorious, conducts an election to allow employees to decide whether or not they wish to be represented by a union. An unfair labor practice charge is filed by any member of the public with an NLRB Field Office if they believe an employer or union has violated the National Labor Relations Act. The Field Office will then investigate the charge and issue a complaint, absent settlement, if the Regional Director determines the charge has merit. The increase in cases comes during a period of critical funding and staffing shortages for the Agency. The NLRB has received the same Congressional appropriation of $274.2 million for nine consecutive years as costs have risen. Adjusting for inflation, the Agency’s budget has decreased 25% since FY2010. Overall Agency staffing levels have dropped 39% since FY2002 and field staffing has shrunk by 50%. The President’s Budget for FY2023 requested $319.4 million for the NLRB, a 16% budget increase. “The NLRB is processing the most cases it has seen in years with the lowest staffing levels in the past six decades. Our dedicated staff, especially in our 48 field offices, are handling unsustainable caseloads. The Agency urgently needs more resources to process petitions and conduct elections, investigate unfair labor practice charges, and obtain full remedies for workers whose labor rights have been violated,” said NLRB General Counsel Jennifer Abruzzo. “We need Congress to help us restore the capacity that we have lost after years of underfunding.” For more information, please contact us at: http://www.beverlyhillsemploymentlaw.com/

Region 28 Wins Injunction Against Arizona Cannabis Dispensary, Ordering Reinstatement of Fired Union Supporter and a Stop to Threats, Promises, and the Impression of Surveillance

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Region 28 Wins Injunction Against Arizona Cannabis Dispensary, Ordering Reinstatement of Fired Union Supporter and a Stop to Threats, Promises, and the Impression of Surveillance 07/01/2022 10:02 AM EDT July 01, 2022 Phoenix, Arizona — On June 23, 2022, Judge G. Murray Snow of the United States District Court for the District of Arizona issued an injunction requiring Gilbert, Arizona cannabis dispensary Absolute Healthcare d/b/a Curaleaf Arizona (Curaleaf) to reinstate a fired union supporter. The injunction also enjoins Curaleaf from threatening employees with losing their tips if they form a union, promising employees benefits if they don’t join a union, and creating an impression that employees’ union activities are being kept under surveillance. It requires Curaleaf to post the court’s order at its store and convene a meeting in which the order will be read to its employees by a Curaleaf manager or NLRB official. The injunction was issued based on a petition for temporary injunctive relief filed by Cornele A. Overstreet, Regional Director of Region 28 of the National Labor Relations Board (NLRB), on behalf of the NLRB. Section 10(j) of the National Labor Relations Act authorizes the NLRB to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations. The petition alleged that Curaleaf unlawfully fired the employee leader of a campaign among its employees to secure union representation by United Food and Commercial Workers, Local 99 (UFCW, Local 99) and that Curaleaf made statements that coerced its employees in exercising their right to organize a union. The petition alleged that injunctive relief was necessary to prevent irreparable harm to Curaleaf’s employees’ right to organize a union. The granted relief will remain in effect during the pendency of administrative proceedings before the NLRB. In those proceedings, an administrative law judge has issued a decision finding that Curaleaf engaged in the unfair labor practices alleged. Curaleaf has filed exceptions to the administrative law judge’s decision, which remain pending before the NLRB. “Workers have a right to form a union without fear of retaliation or coercion,” said Regional Director Overstreet. “Judge Snow’s injunction will protect that right while the NLRB considers whether to uphold the administrative law judge’s decision.” Field Attorney Judith E. Dávila of NLRB’s Region 28 represented Regional Director Overstreet in the Section 10(j) proceedings before Judge Snow. For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

First Three Quarters' Union Election Petitions Up 56%, Exceeding All FY21 Petitions Filed

First Three Quarters' Union Election Petitions Up 56%, Exceeding All FY21 Petitions Filed 07/13/2022 10:09 AM EDT July 13, 2022 During the first nine months of Fiscal Year 2022 (October 1–June 30), union representation petitions filed at the NLRB have increased 56%—up to 1,935 from 1,240 during the first three quarters of FY2021. By May 25, FY2022 petitions exceeded the total number of petitions filed in all of FY2021. At the same time, unfair labor practice charges have increased 14.5%—from 11,451 to 13,106. A representation petition is filed by employees, unions, or employers with an NLRB Field Office to have the NLRB conduct an election to determine if employees wish to be represented by a union. The Field Office investigates the petitions and, if meritorious, conducts an election to allow employees to decide whether or not they wish to be represented by a union. An unfair labor practice charge is filed by any member of the public with an NLRB Field Office if they believe an employer or union has violated the National Labor Relations Act. The Field Office will then investigate the charge and issue a complaint, absent settlement, if the Regional Director determines the charge has merit. The increase in cases comes during a period of critical funding and staffing shortages for the Agency. The NLRB has received the same Congressional appropriation of $274.2 million for nine consecutive years as costs have risen. Adjusting for inflation, the Agency’s budget has decreased 25% since FY2010. Overall Agency staffing levels have dropped 39% since FY2002 and field staffing has shrunk by 50%. The President’s Budget for FY2023 requested $319.4 million for the NLRB, a 16% budget increase. “The NLRB is processing the most cases it has seen in years with the lowest staffing levels in the past six decades. Our dedicated staff, especially in our 48 field offices, are handling unsustainable caseloads. The Agency urgently needs more resources to process petitions and conduct elections, investigate unfair labor practice charges, and obtain full remedies for workers whose labor rights have been violated,” said NLRB General Counsel Jennifer Abruzzo. “We need Congress to help us restore the capacity that we have lost after years of underfunding.” For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

NLRB Appoints Kimberly Sanford as Agency’s First Chief Diversity Officer

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. NLRB Appoints Kimberly Sanford as Agency’s First Chief Diversity Officer 07/12/2022 10:09 AM EDT July 12, 2022 Today, National Labor Relations Board (NLRB) Chairman Lauren McFerran and General Counsel Jennifer A. Abruzzo announced the appointment of Kimberly Sanford as the NLRB’s first Chief Diversity Officer. The appointment is a key component of the NLRB’s commitment to achieving the goals established by President Biden in Executive Order 14035, “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.” As the NLRB’s Chief Diversity Officer, Ms. Sanford will lead the Agency’s efforts to advance diversity, equity, inclusion, and accessibility (DEIA) goals, including building a diverse workforce and fostering an inclusive environment, through policy development, workforce analysis, outreach, education, and retention. Ms. Sanford will do so through collaboration and partnership with all Agency divisions, including the Office of Equal Employment Opportunity (OEEO), which has led the Agency’s work to develop a comprehensive strategic plan for DEIA. With over 35 years of federal service, Ms. Sanford currently serves as the Deputy Director for the Division of Administration at the NLRB. Prior to her tenure with the NLRB, she served at the U.S. Department of Housing and Urban Development (HUD), where she began her professional career as a Legal Technician in the Office of Fair Housing Enforcement and advanced to become a Senior Policy Analyst in the Office of Fair Housing and Equal Opportunity. Ms. Sanford is also a graduate of HUD’s Emerging Leaders Program and holds a Bachelor of Science in Management Studies. “The President’s Executive Order aims to make the federal government a model employer. We wholeheartedly agree that DEIA should be an integral part of all our efforts to achieve that goal,” said Chairman McFerran. “We are thrilled that Kimberly will be leading this initiative and building off the work that OEEO and others have already done in order to create a more equitable and inclusive workplace at the NLRB.” “We’re incredibly pleased to announce this new position within the NLRB, and excited for Kimberly to step into this role,” said General Counsel Abruzzo. “Throughout her tenure at the NLRB, Kimberly has proven to be a strong and thoughtful leader and we’re fortunate that she will be heading our efforts to advance DEIA at the Agency.” For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

NLRB Releases Updated Supplement to Outline of Law and Procedure in Representation Cases

July 11, 2022 Washington, D.C — The National Labor Relations Board (NLRB) has issued an updated supplement to its Outline of Law and Procedure in Representation Cases (“Outline”). The Outline, which was originally issued in the early 1960’s, is a guidance document prepared by the Office of the General Counsel and was last updated in its entirety in 2017. The new supplement, issued in May 2022, covers legal developments related to Board representation law that occurred during 2021. A supplement has been issued each year since, covering developments in representation law during the prior year. The Outline details developments in Board election and representation law and serves as a research tool for attorneys who practice before the Board. The 2021 supplement to the Outline covers virtually all published representation cases (Board and circuit court) from 2021, as well as consolidated representation and unfair labor practice cases in which the Board passed or commented on the representation issues. Several unfair labor practice cases that involve issues relevant to representation case law (e.g., jurisdiction and joint employer) are also included. Rulemaking activities that relate to representation-case matters are included as well. The 2021 supplement was edited by Terence G. Schoone-Jongen, Director of the Board’s Office of Representation Appeals. The Outline and each year’s supplements can be found under “Manuals and Guides” on the NLRB’s public website. For more information, please contact us at: http://www.beverlyhillsemploymentlaw.com/

Bowerman v. Field Asset Services

Employment Class certification was inappropriate where the putative class members could not establish their employer’s liability for failing to pay overtime wages or to reimburse expenses by common evidence. The California Court of Appeal has repeatedly limited Dynamex’s applications to claims based on or rooted in California’s wage orders; Dynamex did not apply to class members’ expense reimbursement claims based on Labor Code §2802, Borello’s multifactor and fact-intensive inquiry did. The court will exercise pendent appellate jurisdiction over interim fee awards that are inextricably intertwined with or necessary to ensure meaningful review of final orders on appeal. Bowerman v. Field Asset Services - filed July 5, 2022 Cite as 2022 S.O.S. 18-16303 For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

NLRB Wins $3.12 Million for Unlawfully Fired Workers in Settlement with MasTec and DIRECTV

NLRB Wins $3.12 Million for Unlawfully Fired Workers in Settlement with MasTec and DIRECTV 06/30/2022 12:41 PM EDT June 30, 2022 As part of a settlement approved on June 1, 2022, by Administrative Law Judge Robert A. Ringler, MasTec Advanced Technologies (MasTec), has agreed to pay 26 former employees $3.12 million in backpay, interest, and expenses. The dispute began in 2006 when 26 service technicians employed by MasTec, a contractor of DIRECTV, LLC f/k/a DIRECTV, Inc. (DIRECTV) that installs satellite TV receivers, were fired after reaching out to a local television station and participating in an interview with a local reporter, which was broadcast in the Orlando, Florida area. In the interview, the technicians voiced their frustration with the new pay structure implemented by their employer, which was based upon the technicians’ ability to convince customers to agree to a particular installation option. The technicians expressed concern with their supervisors telling them to tell customers whatever it took to convince them to agree and with losing money if they did not convince customers. One technician said they were just asking to be treated fairly. Region 12-Tampa of the NLRB investigated and tried the case before an Administrative Law Judge. On July 21, 2011, the National Labor Relations Board determined that the employees’ participation in the TV interview constituted protected concerted activity. Consequently, it found that by causing the discharge of the technicians for their participation in the newscast, and by discharging them, DIRECTV and MasTec committed unfair labor practices. In September 2016, the D.C. Circuit enforced the Board’s order, including the requirement that DIRECTV and MasTec make the unlawfully discharged employees whole. In October 2021, the D.C. Circuit held MasTec in contempt of court, and granted, among other things, costs, expenses, and substantial prospective fines for future violations. On November 30, 2021, Region 14-St. Louis of the NLRB issued a compliance specification setting forth the amounts owed by MasTec and DIRECTV and entered into negotiations that led to the settlement. Region 12 Director David Cohen said, “Workers have the right to speak out publicly about their pay and working conditions, and the NLRB will continue to vigorously protect that right. This very meaningful settlement is the result of an excellent and persistent team effort by Agency personnel, and I greatly appreciate the hard work of all who were involved. This includes the investigation and litigation of the unfair labor practices before the Administrative Law Judge and the Board by Region 12 staff, the litigation efforts to obtain enforcement of the Board Decision and Order in the D.C. Circuit by the Appellate and Supreme Court Litigation Branch, and the investigation, litigation, and negotiation of backpay and other compliance matters led by Region 14 staff, with significant assistance from the staffs of Region 4 and the Contempt, Compliance and Special Litigation Branch of the Office of Legal Counsel.” “I want to thank the many NLRB staff that helped win this significant settlement for the workers who were unjustly fired for exercising their right to engage in protected concerted activity,” said Region 14 Director Andrea J. Wilkes. For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

U.S. District Court Orders Arbah Hotel Corporation to Pay Fines and NLRB Attorney Fees, Holding Arbah in Contempt of Injunction to Bargain in Good Faith

On May 13, 2022, the United States District Court for the District of New Jersey granted Region 22 of the NLRB’s Petition for contempt against Arbah Hotel Corporation and its affiliate The View Hotel, Inc. for failing to comply with the Court’s prior temporary injunction. To remedy Arbah’s failure to comply, the Court ordered Arbah to pay the NLRB attorneys’ fees and costs and ordered prospective fines of $10,000, in addition to daily fines, if Arbah continued not to comply with the court’s order. The Employer operated the Meadowlands View Hotel in North Bergen, New Jersey. The employees —room attendants, porters, drivers, maintenance, cooks, waiters, waitresses, and dishwashers—were represented by the New York Hotel and Motel Trades Council, AFL-CIO (the Union). In February 2020, the Employer subcontracted their work and falsely blamed the Union for their layoffs. In April 2021, the United States District Court issued an order granting the injunctive relief, thus requiring Arbah to recognize and bargain with the Union over a successor collective-bargaining agreement and over the terms of a preferential hiring list. The order also required Arbah to offer reinstatement to the unit employees as their positions became available, provide the information requested by the Union, mail the court order to the unit employees, and to post the court order at the hotel when it reopens. Because the Employer failed to comply with significant parts of the injunction, including the order to bargain over a successor contract and the terms of a preferential hiring list, District Court Judge John Michael Vazquez held Arbah in contempt, ordered Arbah to pay the NLRB’s attorneys’ fees and costs and imposed prospective fines in the case of continued noncompliance. Judge Vazquez also requested additional briefing on whether Arbah’s owner, Mark Wysocki, should be held personally liable for contempt of the order. Regional Director Suzanne Sullivan noted, “This case serves as a cautionary tale for violators of the National Labor Relations Act: the NLRB will pursue all available remedies for employees who are victims of unfair labor practices under the NLRA and will vigorously pursue legal action to ensure that violators adhere to the court’s orders. I want to thank Field Attorney Sharon Chau and Acting Regional Attorney Julie Kaufman for their tireless work on this case.” For more information, please contact us at: http://www.beverlyhillsemploymentlaw.com/

Seviour-Iloff v. LaPaille - filed June 28, 2022, First District, Div. One

The filing of the Initial Report or Claim form initiates the Berman hearing procedure. Labor Code §558.1 must be interpreted as allowing for a private right of action. Seviour-Iloff v. LaPaille - filed June 28, 2022, First District, Div. One Cite as 2022 S.O.S. 2760 For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

NLRB General Counsel Issues Memo on Ensuring Access for Immigrant Workers to NLRB Processes

05/02/2022 10:09 AM EDT May 02, 2022 Today, National Labor Relations Board General Counsel Jennifer Abruzzo released a new protocol to advance immigrant worker protections to freely exercise rights under the National Labor Relations Act (NLRA) and safely participate in NLRB investigations. In a memo issued to all field offices, the NLRB’s Division of Operations Management advised Regions to distribute information (available in English and Spanish) to all witnesses advising them that immigration status is not relevant to whether there has been a violation of the NLRA, that information obtained during NLRB investigations is protected, and that a charging party or witness can ask the NLRB to seek immigration relief for employees at a worksite if it is necessary to protect employees who are participating in NLRB processes or exercising their rights under the NLRA. “One of my top priorities as General Counsel is to ensure that NLRB processes are accessible for all workers,” said General Counsel Jennifer Abruzzo. “All too often, immigrant workers are subject to unlawful intimidation tactics that seek to silence them, denigrate their right to act together to seek improved wages and working conditions, and thwart their willingness to report statutory violations. The NLRB will do everything we can to protect immigrant workers to exercise their rights under the NLRA and to pursue any interference with those rights by participating in the NLRB’s processes.” In addition to distributing written information, Board agents will also verbally advise a witness before taking their testimony in an affidavit that an individual’s immigration or work authorization status is not relevant to our investigation of whether the NLRA has been violated, and that the NLRB will not inquire about the individual’s immigration or work authorization status. Information Officers who assist visitors or callers with preparing a charge for the individual to review and file will provide a copy of the fact sheet along with the draft of the charge. Today’s memo is part of an initiative the General Counsel announced in November in GC 22-01, which sets out casehandling procedures and other efforts to ensure immigrant workers can freely exercise their rights under the NLRA and have effective remedies when those rights are violated. For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

NLRB Modifies Timing of Electronic Notice Posting in Workplaces Impacted by COVID-19

June 02, 2022 Washington, D.C. — In a decision issued today in Paragon Systems, Inc., 371 NLRB No. 104, the National Labor Relations Board modified the timing of its electronic notice-posting requirement in circumstances where an employer has not yet reopened its facility due to COVID-19, or where a substantial complement of employees has not yet returned to work on site, and the employer is communicating with employees by electronic means. Under prior law, both physical and any electronic notice posting were deferred in either circumstance to within 14 days of the facility’s reopening and staffing by a substantial complement of employees, as prescribed in Danbury Ambulance Service, 369 NLRB No. 68 (2020). In today’s decision, a Board majority (Chairman McFerran and Members Wilcox and Prouty) held that any required electronic notice posting must occur within 14 days after service by the Region, while retaining the Danbury schedule as to physical posting of the notice. The majority found that advancing the timing of the electronic notice posting to more promptly notify employees of unfair labor practices committed against them, and the steps that would be taken to remedy those violations, would better effectuate the purposes of the Act. Dissenting on this issue, Members Kaplan and Ring would have adhered to Danbury in its entirety. “As our country continues recover from the pandemic, it is important that the Board’s remedies remain relevant to the realities of the workforce,” said Chairman Lauren McFerran. “This prompt posting of the notice by electronic means will best effectuate the purposes of the National Labor Relations Act by providing workers with timely notice of unfair labor practices and the steps that will be taken to remedy them.” For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

NLRB Region 3-Buffalo Files in Federal Court Seeking Nationwide Cease and Desist Order Against Starbucks, Reinstatement for Seven Workers, and a Bargaining Order

Today, National Labor Relations Board Region 3-Buffalo Regional Director Linda M. Leslie petitioned in United States District Court for injunctive relief for seven former Starbucks employees in Buffalo, New York who were unlawfully fired for exercising their right to form a union. Section 10(j) of the National Labor Relations Act (NLRA) authorizes the NLRB to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations. The petition explains that, after learning about the organizing effort, Starbucks immediately set its vigorous antiunion campaign in motion, employing an expansive array of illegal tactics such as raising wages, promising benefits, bringing in a cadre of managers to monitor employees and discourage union activity, closing stores with active organizing drives, and threatening employees—culminating in the discharge of seven union activists at five different stores over the course of six weeks. The Regional Director is seeking an interim Gissel bargaining order for Camp Road employees because traditional Board remedies will be unable to restore “laboratory conditions” to enable the NLRB to conduct a free and fair rerun election. She is also seeking a broad nationwide cease-and-desist order that would be applicable to all the Employer’s facilities in the United States along with a national posting of the district court’s decision and order at all Starbucks facilities to fully notify employees of their NLRA rights and the protections being afforded by the court’s order. “Absent immediate interim relief, Starbucks will achieve its goal, through unlawful means, of irreparably harming the campaign in Buffalo, and sending a clear chilling message to its employees across the country,” said Region 3’s Regional Director Linda M. Leslie. “We are asking the Court to swiftly grant the injunction so that the unlawfully discharged workers can return to work and effectively exercise their right to engage in union activities, including collectively bargain a union contract.” If granted, the injunction would provide interim relief while the case is being litigated. Regional Director Leslie issued a consolidated complaint on May 19, 2022 containing over 200 allegations of unfair labor practices by Starbucks. A hearing on the complaint before an Administrative Law Judge is set for July 11, 2022. For more information, please contact us at: http://www.beverlyhillsemploymentlaw.com/

Allen v. Santa Clara County Correctional Peace Officers Association

Municipalities are entitled to a good faith defense to a suit for a refund of mandatory agency fees under 42 U.S.C. §1983. Allen v. Santa Clara County Correctional Peace Officers Association - filed June 23, 2022 Cite as 2022 S.O.S. 19-17217 For more information, please contact us at: http://www.beverlyhillsemploymentlaw.com/

Garcia v. Superior Court (Haralambos Beverage)

The Federal Motor Carrier Safety Administration’s order concluding California’s meal and rest break rules were preempted under the Motor Carrier Safety Act does not apply to bar meal and rest break claims arising from conduct that predated the December 2018 order. Garcia v. Superior Court (Haralambos Beverage) - filed June 21, 2022, Second District, Div. Five Cite as 2022 S.O.S. 2633 For more information, please contact us at: http://www.beverlyhillsemploymentlaw.com/

Meza v. Pacific Bell Telephone

The statutory requirement to list on the wage statement hourly rates in effect during the pay period and the corresponding number of hours worked at such rates does not encompass a requirement that an employer list the rates and hours from prior pay periods underlying an overtime true-up calculation. Meza v. Pacific Bell Telephone - filed June 17, 2022, Second District, Div. Three Cite as 2022 S.O.S. 2590 For more information, contact us at: http://www.beverlyhillsemploymentlaw.com/

Pelosi calls Title 42 hold-up in COVID-19 bill ‘blackmail’

Speaker Nancy Pelosi (D-Calif.) on Sunday said holding up a COVID-19 relief bill as a way to demand a vote on Title 42, a Trump-era pandemic public health policy that allows for the rapid expulsion of migrants at the border and prevents them from seeking asylum, is “blackmail,” but she appeared open to the notion of Congress holding a vote on the controversial measure. The comments came after Senate Republicans in early April blocked the upper chamber from advancing a $10 billion COVID-19 bill after Democrats refused to vote on an amendment that called for blocking the Biden administration from rescinding Title 42. An increasing number of Senate Democrats, however, are becoming more open to holding a vote on the controversial policy. Sen. Chris Murphy (D-Conn.) last week said “there’s a growing willingness to bring that up and have the amendment votes necessary to get it to a final vote.” Pelosi on Sunday said “there’s no use holding it up to blackmail, as the Republicans are trying to do.” “We’re working on it. We will find a way. It has to be done, because people continuing to hear every moment — all the time now, hopefully not as deadly as the previous COVID-19. But, nonetheless, we must pass the package,” she added. Pressed on whether Congress would pass the funding even if it includes the Title 42 amendment, Pelosi said, “I don’t even know why 42 would be on it. It has nothing to do with it.” She did, however, say “the fact is now that we have to either substitute for it, but we much pass the COVID package.” The U.S. has observed an increase in COVID-19 cases over the past month, according to the Centers for Disease Control and Prevention, though the numbers still remain far lower than previous outbreaks. By some estimate, the number of coronavirus cases in the U.S. reached the 1 million mark this month. The Speaker on Sunday noted the grim milestone, telling CNN “the sadness of this lingers on, causing all kinds of trauma for families, mental health issues, sadness for families.” “You would think that the Republicans would take that into consideration,” she added. She also recognized the passage of a Ukraine funding bill last week, which the lower chamber passed without COVID-19 funding included. Congressional leaders were considering linking the two priorities. Five things to know about the UFO hearing McConnell condemns Buffalo shooting; doesn’t explicitly criticize replacement theory Pelosi said the House leadership decided not to include COVID-19 funding in the Ukraine bill because Republicans did not support that track. “We wanted to put COVID on there. They said no. We said, ‘OK, Ukraine, urgent, right this minute. We will do that.’ But we have to do the COVID package. There’s no use holding it up to blackmail, as the Republicans are trying to do,” she said. For more information, contact us at http://www.beverlyhillsimmigrationlaw.com/index.html

'Replacement' conspiracies driving gunmen creep into mainstream politics

Critics are drawing parallels between the pattern of racist gunmen citing fears of a conspiracy to "replace" Whites with rhetoric pushed on Fox and by some Republican politicians. The mass shooting in Buffalo, New York, on Saturday was not the first such event in recent years in which a White gunman, who allegedly posted a White supremacist manifesto online, targeted the Black or immigrant community. It's not the second. Or the third. Mass shooting at Buffalo supermarket was a racist hate crime, police say Mass shooting at Buffalo supermarket was a racist hate crime, police say Overtly racist lone gunmen motivated by such hate have, in recent years, targeted a Black church in South Carolina, a synagogue in Pittsburgh, and immigrants at a Walmart in El Paso. Read CNN's report. Some apparently drew inspiration from a shooting by a White man in New Zealand who targeted mosques, killing 51, and published his own manifesto about "The Great Replacement." Now, Buffalo. Get the latest on: The Buffalo shooting and the victims: 10 people were killed at a supermarket and authorities say it was hate crime. The gunman exchanged fire with and killed an armed security guard. The shooter: The suspect is 18-year-old Payton Gendron, who traveled from another New York county hours away and livestreamed the attack on the social media platform Twitch. "Replacement theory" motivation -- According to a 180-page document posted online, attributed to Gendron, he was fixated on what's known as "replacement theory" -- the idea that Whites are being slowly and intentionally replaced by minorities and immigrants. Variations on this basic idea -- that Whites are being replaced by some sort of minority-driven conspiracy -- have made their way into more than just the musings of gunmen. The Fox and GOP version of replacement theory. Critics say it is dangerously close to xenophobic rhetoric finding its way into the mainstream of American politics. Rep. Liz Cheney, a Wyoming Republican, pointed the finger squarely at her party's leadership Monday morning, saying it has "enabled white nationalism, white supremacy, and anti-semitism. History has taught us that what begins with words ends in far worse. @GOP leaders must renounce and reject these views and those who hold them." And after the shooting in Buffalo, Rep. Adam Kinzinger, the Illinois Republican who has split with his party by criticizing former President Donald Trump, tried to make a connection between an old Facebook ad published by Rep. Elise Stefanik, a New York Republican, and replacement theory. Buffalo massacre further rattles an insecure nation Buffalo massacre further rattles an insecure nation "Did you know: @EliseStefanik pushes white replacement theory? The #3 in the house GOP," Kinzinger said on Twitter, linking to media coverage that the congresswoman's Facebook ads received in 2021, including a critical editorial from a local newspaper. The Facebook ads from her campaign last September suggested Democrats wanted to provide a pathway to citizenship for undocumented immigrants to create a permanent liberal majority in Washington. CNN has reached out to Stefanik about Kinzinger's comment. Replacement pattern. That ad is part of a larger narrative. Tucker Carlson, the Fox host, has pushed the idea that Democrats want to import new voters to dilute the votes of other Americans, presumably Whites like him. Trump biographer Michael D'Antonio and City University of New York media studies professor James Cohen wrote a CNN opinion piece last year about how the concept of replacement theory has festered in US politics for decades, but has recently become easy to decode in segments on Carlson's show and in remarks by lawmakers. Read more. CNN's Chris Cillizza has documented how the concept of replacement theory has been mentioned by lawmakers like GOP Rep. Scott Perry, who said this at a House Foreign Affairs Committee meeting in April of 2021: "For many Americans, what seems to be happening or what they believe right now is happening is what appears to them is we're replacing national-born American — native-born Americans to permanently transform the landscape of this very nation," the Pennsylvania Republican said in reference to the number of people trying to enter the country at the United States' southern border. "Uncomfortably" close. This is not to say Perry's comment, Carlson's broadcasts or Stefanik's ad are the same as what's represented in the writings, allegedly from Gendron or other gunmen. They're not. But it is also impossible to deny certain parallels in the language. "This tension, this frustration, this fear sits not that far from our mainstream politics," journalist Wesley Lowery said on CNN's Inside Politics Sunday. "One thing is unquestionably true," he added. "Very often the rhetoric in our politics sits uncomfortably close to the rhetoric that these kind of terrorists espouse." Pledges to fight racism. But how? President Joe Biden, who is headed to Buffalo on Tuesday, pledged to fight racism. "Any act of domestic terrorism, including an act perpetrated in the name of a repugnant white nationalist ideology, is antithetical to everything we stand for in America," he said in a statement on Saturday. "Hate must have no safe harbor. We must do everything in our power to end hate-fueled domestic terrorism." Race is enmeshed in US politics. Political rhetoric often feeds replacement fears by highlighting racial divides that are enmeshed in American life and politics. The issue of immigration will loom over this fall's midterm elections as Biden struggles with how to end Trump-era immigration policy that has kept US borders largely closed. The related issues of voting rights and election security often pit GOP-led states like Georgia, Texas and Florida against big cities with their large minority populations. Seeking accountability from social media companies. Democratic politicians like New York Gov. Kathy Hochul and House Speaker Nancy Pelosi argued Sunday that social media companies should bear some responsibility. "This spreads like a virus," Hochul told CNN's Dana Bash on "State of the Union." She said CEOs of social media companies must look a their policies and do more to take racist content down. "They have to be able to identify when information like this -- the second it hits the platform, it needs to be taken down, because this is spreading like wildfire." Elon Musk, the CEO of Tesla who has been in the process of buying Twitter, has said he would go in the opposite direction. He's a self-described free speech absolutist and would allow more, not less, speech online. Buffalo and gun laws. The gun control debate has shown us that even tragic shooting after tragic shooting will lead to very little concrete action so long as a minority of senators, locked together, can stop any legislation New York already has some of the strictest gun laws in the country and Hochul said she would look to close loopholes in state law that she said allowed magazines like the one apparently used in Buffalo across state lines. Separately, Bash asked Pelosi if Democrats should place higher priority on passing gun safety measures like a stricter background check proposal passed by the House that was stalled in the Senate. Pelosi argued the math makes passing such bills a challenge. "The fact is the 60-vote majority in the Senate is an obstacle to doing any, many good things, unfortunately, and again, we are not going away until the job is done," Pelosi said. For more information contact us at http://www.beverlyhillsemploymentlaw.com/

Providing baby formula for babies held at the border is a legal requirement

As frightened parents grapple with the country’s ongoing shortage of baby formula, some politicians are criticizing the Biden administration, claiming it’s prioritizing immigrant children detained at the border over American families. The narrative took off after U.S. Rep. Kat Cammack, R-Fla., shared a side-by-side photo comparison of a scene from the southwest border and a U.S. grocery store. "The first photo is from this morning at the Ursula Processing Center at the U.S. border. Shelves and pallets packed with baby formula," Cammack tweeted on May 11. "The second is from a shelf right here at home. Formula is scarce. This is what America last looks like." A border patrol agent in Texas sent her the photo, Cammack said. She said the agent told her that his facility had been receiving pallets of formula for immigrants who crossed into the U.S. illegally. Before long, other Republicans and news outlets like Fox News picked up the story. In a joint statement on May 12, Texas Gov. Greg Abbott, a Republican, and National Border Patrol Council President Brandon Judd took aim at President Joe Biden’s policies. "While mothers and fathers stare at empty grocery store shelves in a panic, the Biden administration is happy to provide baby formula to illegal immigrants coming across our southern border," read the statement. "This is yet another one in a long line of reckless, out-of-touch priorities from the Biden administration when it comes to securing our border and protecting Americans." PolitiFact was unable to independently verify the authenticity of Cammack’s photo, and a spokesperson for U.S. Customs and Border Protection did not weigh in on that. It is also unclear when this formula was sent, how long it’s been there or how many people need it. We don’t see a reason to doubt that the photo is real; what’s missing from this controversy is context. Allen Orr, president of the American Immigration Lawyers Association, said that detention facilities regularly stockpile supplies. "The formula is there because it’s always there," Orr said. Some states are struggling less with the formula shortage than others, he said. "Are they taking it, too? Or does it just happen to be there?" What’s more, the Biden administration would be breaking the law if it did not have a supply of formula and other food for people detained in government facilities. Flores settlement requirements for kids in custody Central to this issue is the 1997 Flores settlement, an agreement that sets standards regarding when U.S. immigration officials can detain unaccompanied minors, how those minors must be treated, and how and when minors should be released from federal custody. FEATURED FACT-CHECK The settlement required officials to release children from detention without delay to a parent or legal guardian, an adult relative or a licensed juvenile program willing to accept custody. A minor can be detained temporarily if it is deemed necessary for the child’s safety or to ensure the child’s timely appearance before an immigration court, according to the agreement. Since 1997, additional rulings by federal judges have interpreted the Flores settlement to mean "that all minors in detention — accompanied by their parents or not — cannot be held for more than 20 days," according to the Center for Immigration Studies, which favors reduced immigration. When officials determine it is necessary to detain a child, however, the Flores settlement requires that minors be held "in facilities that are safe and sanitary." The facility must provide food and drinking water, among other requirements. For infants, that means officials must provide baby formula. A 2015 U.S. Customs and Border Protection document about detention standards acknowledged this: "Food must be appropriate for at-risk detainees’ age and capabilities (such as formula and baby food)." A Customs and Border Protection spokesperson provided a statement to PolitiFact that said the agency complies with regulations to make sure all migrants have their basic needs met. The spokesperson did not respond to specific questions about when or where the baby formula in Cammack’s photograph was purchased and stored. Orr said the government is both morally and legally obligated to feed detained children, even during a formula shortage. He referenced both the Flores settlement and international human rights commitments. "Anyone in a detention facility is afforded food," he said. Trump and the Flores agreement It’s worth mentioning that former President Donald Trump also followed the rules of the Flores agreement. Trump fought to enact a rule that would have allowed indefinite detention of migrant children, effectively putting an end to the Flores agreement, but his effort was unsuccessful and the administration followed the Flores requirements, the Washington Post reported. In one 2020 report about how the Trump administration struggled to manage the 2019 influx of migrants at the border, Department of Homeland Security officials said they "observed all Border Patrol stations had food, snacks, juice, and infant formula available for children." We reached out to Cammack and Abbott for comment and did not hear back by deadline. Our ruling In a statement, Abbott said the Biden administration choosing to send baby formula to the border "is yet another one in a long line of reckless, out-of-touch priorities" on the border. An unverified photo suggests that the Biden administration has shelves stocked with baby formula to feed infants at processing centers near the border amid a nationwide formula shortage. What’s missing from claims like Abbott’s is that the Biden administration’s actions are in keeping with what previous presidents have done to comply with a federal settlement governing the detention of immigrant children. The baby formula shortage continues to cause stress for many American families, but it does not release the government from its legal responsibility to provide adequate care and nutrition to the children in its custody. The claim contains an element of truth but ignores critical facts that give a different impression. We rate it Mostly False.

US states argue to keep contentious border policy in place

US court is hearing challenge to Biden administration’s plan to end Title 42 restriction at US-Mexico border this month. Migrants at the border Arizona, Louisiana and Missouri sued the Biden administration over its plan to end the 'Title 42' border policy and were later joined by 18 other states in their legal challenge [File: Christian Chavez/AP Photo] Published On 13 May 2022 13 May 2022 A group of 21 US states have argued that the Biden administration’s plan to lift a contentious border restriction that barred most asylum seekers from seeking protection at the US-Mexico border was made without sufficient consideration of the effects it would have. Drew Ensign, a lawyer representing the states involved in the legal challenge, told US District Judge Robert Summerhays on Friday that their lawsuit was “not about the policy wisdom” behind the announcement to end the policy on May 23. KEEP READING list of 3 items list 1 of 3 US announces end to Title 42 expulsions at Mexico border list 2 of 3 Three states sue Biden administration over ending Title 42 policy list 3 of 3 As Title 42 winds down, aid groups prepare for shift at US border end of list Rather, Ensign argued that the US Centers for Disease Control and Prevention (CDC) did not follow proper administrative procedures requiring public notice and the gathering of comments on the decision to end the restrictions imposed under what is known as Title 42. More than 1.8 million Title 42 expulsions have been carried out since March 2020, when the policy was first invoked under former President Donald Trump’s administration as the nation was going into lockdown due to COVID-19. Rights groups have said the move was made largely to deter asylum at the border, however. Title 42 has allowed US authorities to quickly expel most asylum seekers who arrived at the border without giving them chance to request protection in the country, which rights groups said violated US and international law. Migrants being returned The US states that sued are alleging that proper consideration was not given to increases in border crossings and their possible effects [File: Jose Luis Gonzalez/Reuters] The lawsuit came after the Department of Homeland Security (DHS) announced on April 1 that the restriction would be lifted by May 23 after the CDC said it was no longer needed. Arizona, Louisiana and Missouri quickly sued and were later joined by 18 other states in the legal challenge being heard on Friday. Texas sued independently. The states have alleged that proper consideration was not given to the resulting increases in border crossings and their possible effects, including pressure on state healthcare systems and the diversion of border law enforcement resources from drug interdiction to controlling illegal crossings. Jean Lin, with the Department of Justice, argued on Friday that the CDC was within its authority to lift an emergency health restriction it felt was no longer needed. She said the CDC order was a matter of health policy, not immigration policy. Sign up here to get weekly updates about The Americas E-mail address Sign up By signing up, you agree to our Privacy Policy “There is no basis to use Title 42 as a safety valve,” Lin told Summerhays. Several migrant advocacy groups have asked Summerhays to at least allow Title 42 to be lifted as planned in California and New Mexico, two border states that have not challenged the administration’s decision. ADVERTISING But the effort to end the policy came just months before crucial US midterm elections in November, and it appeared to have emboldened some Republicans who want to make immigration an issue before the vote. Migrants being returned to Mexico Rights groups say Title 42 violates US and international law [File: Jose Luis Gonzalez/Reuters] “Ending refugee protection for those fleeing violence and human rights violations is a betrayal of the Democrats’ supposed values and our nation’s identity,” Frank Sharry, executive director of America’s Voice, a group that advocates for immigration reform, said in a statement on Wednesday. “It will do nothing to stop Republican attacks and falsehoods over the border, and it will do nothing to modernize our immigration system so that it serves our interests and reflects our values,” Sharry said in a statement. US authorities stopped asylum seekers more than 221,000 times at the Mexican border in March, a 22-year high. Many of those were repeat crossers. Title 42 authority has been applied unevenly across nationalities. Mexico has agreed to take back migrants from Guatemala, Honduras, El Salvador and Mexico — but largely refused to take back people from other countries. Under Title 42, the US has flown Haitian asylum seekers, including those who had not lived in the country for years, to the crisis-stricken nation on board deportation flights. ADVERTISING Earlier this year, however, US border officials exempted Ukrainians fleeing the war from Title 42 expulsions and allowed them to enter the US through the US-Mexico border. For more information contact us at http://www.beverlyhillsemploymentlaw.com/

A Fringe Conspiracy Theory, Fostered Online, Is Refashioned by the G.O.P.

Replacement theory, espoused by the suspect in the Buffalo massacre, has been embraced by some right-wing politicians and commentators. Give this article 1.2K The belief in replacement theory fueled the right-wing rally in Charlottesville, Va., in 2017 that erupted in violence. The belief in replacement theory fueled the right-wing rally in Charlottesville, Va., in 2017 that erupted in violence. Credit...Edu Bayer for The New York Times By Nicholas Confessore and Karen Yourish Published May 15, 2022 Updated May 16, 2022, 10:23 a.m. ET Inside a Pittsburgh synagogue in 2018, a white man with a history of antisemitic internet posts gunned down 11 worshipers, blaming Jews for allowing immigrant “invaders” into the United States. The next year, another white man, angry over what he called “the Hispanic invasion of Texas,” opened fire on shoppers at an El Paso Walmart, leaving 23 people dead, and later telling the police he had sought to kill Mexicans. And in yet another deadly mass shooting, unfolding in Buffalo on Saturday, a heavily armed white man is accused of killing 10 people after targeting a supermarket on the city’s predominantly Black east side, writing in a lengthy screed posted online that the shoppers there came from a culture that sought to “ethnically replace my own people.” Three shootings, three different targets — but all linked by one sprawling, ever-mutating belief now commonly known as replacement theory. At the extremes of American life, replacement theory — the notion that Western elites, sometimes manipulated by Jews, want to “replace” and disempower white Americans — has become an engine of racist terror, helping inspire a wave of mass shootings in recent years and fueling the 2017 right-wing rally in Charlottesville, Va., that erupted in violence. ADVERTISEMENT Continue reading the main story But replacement theory, once confined to the digital fever swamps of Reddit message boards and semi-obscure white nationalist sites, has gone mainstream. In sometimes more muted forms, the fear it crystallizes — of a future America in which white people are no longer the numerical majority — has become a potent force in conservative media and politics, where the theory has been borrowed and remixed to attract audiences, retweets and small-dollar donations. By his own account, the Buffalo suspect, Payton S. Gendron, followed a lonelier path to radicalization, immersing himself in replacement theory and other kinds of racist and antisemitic content easily found on internet forums, and casting Black Americans, like Hispanic immigrants, as “replacers” of white Americans. Yet in recent months, versions of the same ideas, sanded down and shorn of explicitly anti-Black and antisemitic themes, have become commonplace in the Republican Party — spoken aloud at congressional hearings, echoed in Republican campaign advertisements and embraced by a growing array of right-wing candidates and media personalities. Editors’ Picks Nobody Makes Films Like Alex Garland. But He Might Stop Making Them. What’s Down the Road for Silicon? An Intimate Look at Mexico’s Indigenous Seri People Continue reading the main story Image Replacement theory is a central theme on Tucker Carlson’s show on Fox. Replacement theory is a central theme on Tucker Carlson’s show on Fox.Credit...Justin T. Gellerson for The New York Times No public figure has promoted replacement theory more loudly or relentlessly than the Fox host Tucker Carlson, who has made elite-led demographic change a central theme of his show since joining Fox’s prime-time lineup in 2016. A Times investigation published this month showed that in more than 400 episodes of his show, Mr. Carlson has amplified the notion that Democratic politicians and other assorted elites want to force demographic change through immigration, and his producers sometimes scoured his show’s raw material from the same dark corners of the internet that the Buffalo suspect did. “It’s not a pipeline. It’s an open sewer,” said Chris Stirewalt, a former Fox News political editor who was fired in 2020 after defending the network’s decision to call Arizona for then-candidate Joseph R. Biden, and who wrote a forthcoming book on how media outlets stoke anger to build audiences. ADVERTISEMENT Continue reading the main story “Cable hosts looking for ratings and politicians in search of small-dollar donations can see which stories and narratives are drawing the most intense reactions among addicted users online,” Mr. Stirewalt said. Social media sites and internet forums, he added, are “like a focus group for pure outrage.” In just the past year, Republican luminaries like Newt Gingrich, the former House speaker and Georgia congressman, and Elise Stefanik, the center-right New York congresswoman turned Trump acolyte (and third-ranking House Republican), have echoed replacement theory. Appearing on Fox, Mr. Gingrich declared that leftists were attempting to “drown” out “classic Americans.” Image Elise Stefanik, the third-ranking House Republican, has echoed replacement theory. Elise Stefanik, the third-ranking House Republican, has echoed replacement theory.Credit...Tom Brenner for The New York Times In September, Ms. Stefanik released a campaign ad on Facebook claiming that Democrats were plotting “a PERMANENT ELECTION INSURRECTION” by granting “amnesty” to illegal immigrants, which her ad said would “overthrow our current electorate and create a permanent liberal majority in Washington.” That same month, after the Anti-Defamation League, a civil rights group, called on Fox to fire Mr. Carlson, Representative Matt Gaetz, Republican of Florida, stood up both for the TV host and for replacement theory itself. “@TuckerCarlson is CORRECT about Replacement Theory as he explains what is happening to America,” Mr. Gaetz wrote on Twitter. In a statement after the Buffalo shooting, Mr. Gaetz said that he had “never spoken of replacement theory in terms of race.” One in three American adults now believe that an effort is underway “to replace native-born Americans with immigrants for electoral gains,” according to an Associated Press poll released this month. The poll also found that people who mostly watched right-wing media outlets like Fox News, One America News Network and Newsmax were more likely to believe in replacement theory than those who watched CNN or MSNBC. Live Updates: Buffalo Shooting Updated May 16, 2022, 4:59 p.m. ET53 minutes ago 53 minutes ago The shooting in Buffalo is the third at a grocery store in recent years. How guns are taken away under New York’s ‘red flag’ law. A father buying his 3-year-old son’s birthday cake was among the victims. Underlying all variations of replacement rhetoric is the growing diversity of the United States over the past decade, as the populations of people who identify as Hispanic and Asian surged and the number of people who said they were more than one race more than doubled, according to the Census Bureau. ADVERTISEMENT Continue reading the main story Democratic politicians have generally been more supportive of immigration than Republicans, especially in the post-Trump era, and have pushed for more humane treatment of migrants and refugees. But the number of immigrants living in the United States illegally, which rose throughout the 1990s and 2000s, first began to decline under President Obama, a Democrat whom critics nicknamed the “deporter-in-chief.” There is no evidence of widespread voting by noncitizens and others who are ineligible. And while Mr. Biden has laid out plans to expand legal immigration, federal agencies have expelled more than 1.3 million migrants at the southwest border on his watch, while continuing some of the more restrictive immigration policies begun by former President Trump. Throughout his presidency, Mr. Trump filled his public speeches and Twitter feed with often inflammatory, sometimes false rhetoric about immigrants, and he employed the term “invaders” in arguing for a border wall. Such language has been more broadly adopted by his most ardent supporters, such as Wendy Rogers, an Arizona state senator, who last summer said on Twitter, “We are being replaced and invaded” by illegal immigrants. Image President Donald Trump at a rally in 2018. He has employed the term “invaders” in arguing for a border wall. President Donald Trump at a rally in 2018. He has employed the term “invaders” in arguing for a border wall. Credit...Doug Mills/The New York Times Efforts to reach Ms. Rogers on Sunday were unsuccessful. Reached by email, Mr. Gingrich declared replacement theory “insane,” adding that he was opposed to all anti-Semitism as well as “the white racist violence in Buffalo.” Responding to criticism of Ms. Stefanik’s ad in the wake of the Buffalo shooting, a senior adviser for the congresswoman sent two responses: a sorrowful statement from Ms. Stefanik about the killing in Buffalo, and a fiery rejoinder from the adviser that “despite sickening and false reporting,” the congresswoman “has never advocated for any racist position or made a racist statement.” Experts who study digital extremism and media described a complex interplay between the darker version of replacement theory that features on white nationalist or nativist websites, and the attenuated versions now echoing around the conventional right, including on cable news and in pro-Trump media outlets. “Someone like Carlson can introduce viewers to ideas that they then explore more fully online, searches that lead them into far-right spaces that either reinforce their existing views or radicalize them,” said Nicole Hemmer, a historian at Columbia University. “But someone like Carlson is also important because he legitimates those ideas, making them seem less radical when viewers see them.” ADVERTISEMENT Continue reading the main story Measuring the extent of Mr. Carlson’s influence in spreading replacement theory may be impossible. But controversies around the host’s use of “replacement” rhetoric appear to have at least helped drive public curiosity about the idea. Until the Buffalo shootings, according to Google data, there had been three big spikes in Google searches for “replacement theory” or “great replacement,” a European variation popularized by the French writer Renaud Camus in recent years. Two followed the shootings in Christchurch, New Zealand, and El Paso, each covered by news outlets around the world. The third came in April 2021, when Mr. Carlson drew calls for Fox to fire him after defending the idea of demographic “replacement” on the network. The Buffalo suspect appears to have immersed himself on web forums like 4chan and 8chan, where versions of replacement theory abound. That is also where the suspect, before setting out to slaughter Black shoppers in Buffalo, posted a 180-page compendium of racist arguments and internet memes. He wrote that he got his news from Reddit. He began browsing 4chan in May 2020 “after extreme boredom,” he wrote, and quickly found a gateway to anti-Black and antisemitic replacement content. Reflecting the most extreme versions of replacement theory, the suspect deemed Black people, like immigrants, as “replacers”: people who “invade our lands, live on our soil, live on government support and attack and replace our people.” Image A crowd outside Tops market for a vigil the day after a gunman killed 10 people at the store. A crowd outside Tops market for a vigil the day after a gunman killed 10 people at the store.Credit...Joshua Rashaad McFadden for The New York Times According to a detailed analysis by the Anti-Defamation League provided to The Times, the suspect’s screed plagiarized almost two-thirds of another manifesto — the one left by an Australian man who in 2019 murdered dozens of Muslims as they prayed in two mosques in Christchurch. In some instances, the Buffalo suspect replaced the Christchurch killer’s references to Angela Merkel, the former German chancellor, with George Soros, the billionaire philanthropist. One page of the Australian’s document includes a purported count of Jews working at the senior levels of major media outlets, including Fox itself. Oren Segal, vice president of the ADL’s Center on Extremism, said that the Buffalo suspect’s repurposing of the Christchurch manifesto to justify an attack on Black Americans “demonstrates the evolving and interactive nature of extremist propaganda.” Mr. Carlson’s replacement rhetoric comes without the explicitly antisemitic elements common on racist web platforms. There is no indication that the Buffalo gunman watched Mr. Carlson’s show, or any other on Fox, and Mr. Carlson has denounced political violence even as he fans his viewers’ fears. ADVERTISEMENT Continue reading the main story But there are also notable echoes between Mr. Carlson’s segments and the Buffalo suspect’s long litany of grievances, reflecting the blurry boundary between internet-fueled griping and lines of attack now common in conservative media and politics. “Why is diversity said to be our greatest strength? Does anyone even ask why? It is spoken like a mantra and repeated ad infinitum,” the suspect wrote. The line nearly matches one of Mr. Carlson’s go-to attacks on Fox. “How, precisely, is diversity our strength?” Mr. Carlson asked in a 2018 segment, one of many in which he has hit on the question. “Since you’ve made this our new national motto, please be specific as you explain it.” A Fox spokeswoman declined to comment. Amy Spitalnick, the executive director of Integrity First for America, a group that waged a successful civil suit against organizers of the 2017 Charlottesville rally, argued that the broader promotion of replacement rhetoric normalized hate and emboldened violent extremists. “This is the inevitable result of the normalization of white supremacist Replacement Theory in all its forms,” Ms. Spitalnick said. “Tucker Carlson may lead that charge — but he’s backed by Republican elected officials and other leaders eager to amplify this deadly conspiracy.” For more information contact us at http://www.beverlyhillsemploymentlaw.com/