Royal

NLRB Guidance on Unionized Employer Bargaining Obligations when implementing OSHA’s ETS to Protect Workers from Coronavirus

November 19, 2021

The National Labor Relations Board (NLRB) has released guidance on unionized employers’ bargaining obligations when implementing the Occupational Safety and Health Administration’s Emergency Temporary Standard to Protect Workers from Coronavirus (ETS). The ETS, if put into effect, would require employers with 100 or more employees to either institute a vaccine mandate or implement a testing program. The NLRB guidance advised that unionized employers must bargain over the latitude provided to employers by the ETS in making discretionary decisions for implementation of the mandate or testing program. Additionally, the guidance dictated that unionized employees should bargain over the potential effects of the ETS on the terms and conditions of employment and consequences for employees who fail to comply.


This guidance comes despite the November 16 announcement by the Occupational Safety and Health Administration that it was suspending implementation of the ETS. This announcement comes as a response to the Fifth Circuit Court of Appeals Order that ordered a pause on implementation of the ETS in light of pending litigation. In total, there were 34 petitions filed in 12 different circuit courts which sought review of the OSHA rule. In accordance with procedure, the cases were consolidated and a drawing selected the Sixth Circuit Court of Appeals to hear the challenges as a consolidated case. The Sixth Circuit will have the authority to modify or strike down the Fifth Circuit’s Order. It is expected that the United States Supreme Court will likely have the final say on this matter.


If you have questions about OSHA’s Emergency Temporary Standard, or any other general employment issues, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025
The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute. Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device. This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

After the DEI Executive Order

February 14, 2025
What Are the Compliance Requirements for Private Employers?
Share by: