Insights

Washington, D.C. – June 29, 2016: On June 28, 2016, the U.S. Supreme Court denied certiorari in Prime Healthcare Services, Inc. v. SEIU, upholding the Ninth Circuit Court of Appeals decision in favor of SEIU, Crowell & Moring client Kaiser Foundation Health Plan, and related organizations. In the matter, Prime Healthcare Services, Inc. alleged an antitrust conspiracy between a health care workers' union and Kaiser to eliminate a competing hospital services provider from the market and asserted related monopolization claims against Kaiser.

Washington, D.C. – January 17, 2013: Crowell & Moring LLP is pleased to announce it has elected seven attorneys to the firm's partnership effective January 1, 2013. The firm has also promoted three attorneys to the position of senior counsel, and nine associates to the position of counsel. The new partners, senior counsel, and counsel have been promoted from within the ranks of the firm's Washington, D.C., San Francisco, Brussels, and London offices.

On January 10, 2024, the U.S. Department of Labor (“DOL”) published its final rule on Employee or Independent Contractor Classification under the Fair Labor Standards Act (“FLSA”). Crowell & Moring previously reported on the proposed rule announced on October 11, 2022. The final rule rescinds the “core factors” independent contractor rule adopted by the Trump administration in 2021 and returns to a “totality of the circumstances” analysis for determining whether a worker is properly classified as an employee or independent contractor. According to the DOL, the new final rule institutes an analysis that better aligns with judicial precedent and the FLSA’s text and purpose. The final rule goes into effect on March 11, 2024.

On October 27, the National Labor Relations Board (“NLRB”) issued a long-awaited Final Rule (“Final Rule”) that will dramatically alter the test for joint-employer status. As proposed,  the Final Rule rescinds the NLRB’s 2020 Final Rule, with the NLRB claiming that the new rule “more faithfully grounds the joint-employer standard in established common-law agency principles.”   In effect, the Final Rule will make it easier for employees of franchises, staffing agencies, and potentially a broad swath of contractors to show that two entities are joint employers. If an entity is found to be a joint employer with the direct employer of unionized employees, “under common-law agency principles,” the entity can be liable for the unfair labor practices of the co-employer and can be required to negotiate with the union representing the workers under the National Labor Relations Act (“NLRA”).  The NLRB’s new rule will take effect on December 26, 2023 and is not retroactive.

The NLRB recently effected two significant, pro-union changes to the way in which future union organizing and representation cases proceed.  First, abandoning more than 50 years of settled law, the National Labor Relations Board’s recent decision in Cemex Construction Materials Pacific (372 NLRB No. 130), changed the way in which unions will likely organize private sector employers in the United States.  Pursuant to Cemex, if a union claims to have majority support and demands recognition, an employer must either (1) grant recognition without the benefit of an NLRB election, or (2) file its own NLRB petition seeking an election.  If the employer fails to take either step, the union can file an unfair labor practice charge, and the NLRB will find a violation and order mandatory union recognition unless the employer proves the union did not have majority support in an appropriate bargaining unit.  And even if the employer files a petition for election (an “RM petition”), the NLRB may cancel the election and issue a bargaining order if the employer commits virtually any unfair labor practice during the period preceding the election.

Please join us for the next edition of Third Thursday – Crowell & Moring’s Labor and Employment Update, a webinar series dedicated to helping our clients stay on top of developing law and emerging compliance issues.

Please join us for the next edition of Third Thursday – Crowell & Moring's Labor and Employment Update, a webinar series dedicated to helping our clients stay on top of developing law, emerging compliance issues, and best practices.

Please join members of Crowell & Moring’s Labor & Employment group for an update on the potential impact of the Biden Administration’s policies and priorities for U.S. employers. Our panel will review new senior presidential appointments, pending congressional legislation, and other regulatory developments.

As COVID-19 infections continue to mount, reports of employees becoming increasingly concerned about having to report to worksites across the country in service of essential businesses are escalating. Anxious employees are refusing to come to work, and in some cases, have already lodged formal complaints in court and with relevant agencies, notwithstanding the myriad efforts undertaken by their employers both to adhere to CDC guidance and implement wide ranging safety measures.