Chad M. Horton

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In an unsurprising decision applicable to both unionized and non-union employers, the National Labor Relations Board changed its standard for assessing whether seemingly neutral work rules violate the National Labor Relations Act (NLRA). The Board’s decision in Stericycle, Inc. applies to challenges to an employer’s maintenance of work rules that do not expressly apply to employees’ protected activity. (Note: This decision does not alter Board law concerning the analysis of rules that explicitly restrict activities protected by Section 7 of the NLRA, or rules enacted in response to activities protected by the NLRA, such as union organizing.)Continue Reading Employers – The NLRB Has Just Made Many Common Work Rules Unlawful

Following the Federal Trade Commission’s proposed near-total ban on non-compete agreements, which we wrote about here, and an increasing number of state laws limiting or banning such agreements, another federal agency official is piling on. On May 30, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo expressing her position that noncompete agreements violate the National Labor Relations Act (NLRA). Specifically, GC Abruzzo asserts that noncompete agreements chill employees’ exercise of rights guaranteed by Section 7 of the NLRA unless the noncompete agreement is “narrowly tailored to address special circumstances” that justify the interference with employees’ Section 7 rights. Absent narrow tailoring to address special circumstances, GC Abruzzo contends that proffering, maintaining, or enforcing noncompete agreements violates the NLRA.Continue Reading The NLRB General Counsel Joins the War on Noncompete Agreements

The National Labor Relations Board (NLRB or the “Board”) announced a return to the pre-2020 “setting-specific” standard in cases where employees are disciplined for misconduct occurring during the course of activity protected by the National Labor Relations Act (NLRA). The case, Lion Elastomers, LLC II, overrules the Trump-era Board decision in General Motors, which assessed the employer’s motive in taking adverse action against an employee who may have engaged in misconduct during the course of protected activity. Consequently, the Board is likely to permit employees greater latitude to make abusive, offensive, or profane comments in the workplace if such comments have even an attenuated link to activity that may be protected by the NLRA.Continue Reading NLRB Returns to More Lenient Standard for Employees’ Abusive and Profane Misconduct

A Regional Director of the National Labor Relations Board found merit to an unfair labor practice charge alleging that the University of Southern California (USC) misclassified football and basketball players as student-athletes rather than employees and maintained unlawful work rules. In addition, the Complaint will allege the Pac-12 Conference and the NCAA are joint employers of the USC athletes. The charge was filed on behalf of the athletes by the National College Players Association, a college athlete advocacy group.
Continue Reading Are College Athletes “Employees” Under Federal Labor Law? We Are About to Find Out…

On Thursday, the National Labor Relations Board (NLRB or the Board) reaffirmed its Johnnie’s Poultry standard for analyzing an employer’s questioning of employees in preparation for NLRB proceedings. Employers must provide a list of assurances to employees and the failure to recite even one of the assurances shall render such questioning per se (or automatically) unlawful.
Continue Reading NLRB Reaffirms Safeguards for Questioning Employees in Preparation for NLRB Proceedings

In an expected move, the National Labor Relations Board (the Board) published a Notice of Proposed Rulemaking (NPRM) that would rescind a final rule issued in April 2020 (the 2020 Rule), which we discussed here. The proposed rule, titled the “Fair Choice and Employee Voice” rule, would enact policies that would insulate a union’s status as employees’ bargaining representative by (1) reviving “blocking charge” procedures, (2) reinstating an immediate “recognition bar,” and (3) allowing unions in the construction industry to obtain an enhanced representational status through contract language alone and without ever having to demonstrate support by a majority of the employees it represents.
Continue Reading NLRB Issues Proposed Rule Nixing Trump-Era Rule, Reinstating Protections for Union’s Representation Status

Take note, unionized employers: the National Labor Relations Board (“NLRB” or the “Board”) held on Monday that employers violate the National Labor Relations Act (“NLRA”) when, following expiration of the parties’ collective-bargaining agreement (“CBA”), they unilaterally cease deducting and remitting employee union dues to the union pursuant to contractual dues checkoff provisions. The 3-2 decision in Valley Hospital Medical Center (”Valley Hospital II”), split along partisan lines, is the next in what should be a steady stream of union-friendly decisions likely to be issued by the Biden Board in the coming months.
Continue Reading In Precedent-Shifting Decision, NLRB Says Dues Checkoff Survives CBA Expiration

One day after Labor Day, the National Labor Relations Board (“NLRB” or the “Board”) issued a proposed rule that would rescind and replace the Trump Administration’s 2020 rule that established the current test for determining whether two entities are joint employers. Predictably, the proposed rule, if adopted by the Board, will result in more findings that two entities are joint employers. Under federal labor law, a joint employer is required to bargain with a union selected by its jointly-employed workers and may be held liable for the unfair labor practices committed by the other employer.
Continue Reading NLRB Proposes Return to a More Expansive Joint Employer Standard

In today’s episode of “They Really Made a Federal Case Out of That?” the National Labor Relations Board (the “Board”) rejected a union’s claim that a hotel employer was obligated to bargain its decision, or the effects of its decision, to purchase and use fluffier king size pillows in its hotel rooms. (Your tax dollars at work, my friends!)
Continue Reading Hotel Did Not Need to Bargain Over Puffier Pillows, says NLRB…