On April 8, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued GC Memo 24-04, providing yet another memorandum broadening remedies for employees that have been wrongfully discharged for engaging in union or other protected concerted activity.  In this memo, GC Abruzzo encouraged Regions to pursue make-whole remedies for all employees, including those not identified in an unfair labor practice investigation, allegedly harmed by the unlawful rules or contract terms. Continue Reading General Counsel Abruzzo’s Latest Memorandum Encourages a Further Expansion of Remedies for Employees

As our associate Evan Conder reported in a blog post last month, a Regional Director for the National Labor Relations Board issued a game-changing decision that players on Dartmouth’s men’s basketball team are “employees” within the meaning of the National Labor Relations Act (“NLRA”). The players then voted (13-2) to unionize. But now, Dartmouth is refusing to negotiate with the players’ chosen representative, the Service Employees International Union, Local 560. Continue Reading So, Dartmouth Won’t Play Ball with the Union…

This is true in the context of existing race discrimination concerns and complaints in this particular (non-union) workplace, according to the National Labor Relations Board in a case involving Home Depot. Notably, the Board asserted that, “Insofar as BLM has become a well-known abbreviation, and the phrase ‘Black Lives Matter,’ when displayed in the workplace, could reasonably be understood as referring to issues of racial equity and equality at work, it is arguable that displaying the phrase in the workplace, standing alone, would support a mutual aid or protection finding.” However, the Board stated that it was not deciding that issue here (and we add, “yet.”).Continue Reading Display of BLM Insignia = Protected Concerted Activity

The National Labor Relations Board’s (the Board) General Counsel, Jennifer Abruzzo ,has sought stronger remedies for violations of the National Labor Relations Act. Her newest proposed remedy would, in some cases, allow a union to decide who must be hired by the employer.Continue Reading Is the NLRB Overstepping? Proposed Remedy Would Give Unions Hiring Control

On February 5, 2024, Laura Sacks, Regional Director for Region 1 of the National Labor Relations Board (“NLRB”), ruled that players on Dartmouth’s men’s basketball team are “employees” within the meaning of the National Labor Relations Act (“NLRA”).  While this decision may not come as a surprise in light of NLRB General Counsel Jennifer Abruzzo’s GC Memo 21-08 titled “Statutory Rights of Players at Academic Institutions (Student Athletes) Under the National Labor Relations Act”, this decision is likely to accelerate the transformation of college athletics that has already began with the NCAA’s suspension of name, image and likeness rules.Continue Reading March Madness in February? Unionization Heats Up College Sports Landscape

A recent New York Times article highlighted the use and, frankly, abuse of Training Repayment Agreement Provisions (TRAP – oooooh, good acronym!), also known as stay-or-pay provisions. Under a TRAP, if an employee leaves their job before a certain specific amount of time has passed, they are required to pay back monies ostensibly tied to the costs of training, or finding a replacement, or even lost profits. The use of TRAPs appears to have significantly increased in recent years, and the Biden Administration is paying attention – and it is not happy.Continue Reading “Stay-or-Pay”? A Potential TRAP for Employers!

Once upon a time, employees in all states but Montana (always bucking the establishment!) were presumed to be employed at-will, absent some sort of employment agreement (e.g. individual contract for a term, a collective bargaining agreement, policies that contemplate termination for cause, etc.). That means that either the employer or the employee may terminate the employment relationship at any time, for any or even no reason (as long as it’s not illegal – like, say, discrimination or retaliation). And so our well-meaning but foolish Employer is terribly excited by that principle because they want to get rid of an Employee. But … as with all good fairy tales, there is a dark side.Continue Reading At-Will Employment Is a Fairy Tale…

On November 2, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo provided guidance to inquiries received by the NLRB in the wake of the Board’s decision in Cemex Construction Materials Pacific, LLC (which we wrote about here). In summary, the Board’s decision in Cemex established a new standard for the steps to be taken by an employer that receives a union’s demand for recognition, and the consequences facing an employer that violates the National Labor Relations Act (NLRA) after receiving a demand for recognition – specifically, the likelihood that the Board will order the employer to bargain with the union, even if the employer did not extend voluntary recognition to the union and the union did not prevail in a NLRB-administered election.Continue Reading NLRB GC Issues Guidance Regarding Board Decision Impacting Employer Responses to Demands for Voluntary Recognition

Well I think we all recognize that Artificial Intelligence (AI) has created some seismic shifts in the way things can be done, including in the workplace (and I covered many of the risks and concerns of generative AI for employers in our June 2023 E-Update). Governments at all levels are taking action to try to put guardrails on the use of AI. And now, President Biden has signed an Executive Order on “Safe, Secure and Trustworthy Artificial Intelligence,” as summarized in a Fact Sheet. This is a wide-ranging EO, but one of the areas it specifically addresses is the impact on workers. Continue Reading What Impact Will President Biden’s AI Executive Order Have in the Workplace?

Many companies blissfully believe that they don’t have to worry about the National Labor Relations Act or its enforcing agency, the National Labor Relations Board, as long as they don’t have a union and no one is currently trying to unionize them. They’re wrong. Terribly wrong. Horribly, astoundingly, insanely wrong. And ignoring an order from the Board can have serious consequences – including being taken into custody by U.S. Marshals, as the Board made very clear in a recent press release!Continue Reading Refusing to Comply with an NLRB Order Can Land Employers in Handcuffs (Even If You’re Not Unionized)