Labor Law & NLRB

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As has been widely reported, including in our February E-Update, the National Labor Relations Board recently asserted that severance agreements may not contain general non-disparagement or confidentiality/non-disclosure clauses, based on its premise that such clauses violate the rights of employees under Section 7 of the National Labor Relations Act to engage in concerted activity for their mutual aid or protection (i.e. “protected concerted activity”). This ruling was troubling for unionized and non-union employers alike. General Counsel Jennifer Abruzzo has now issued a memo expressing her views regarding the practical impact of this ruling.

Continue Reading NLRB General Counsel Provides (Some) Clarification on Severance Agreement Non-Disparagement and Confidentiality Provisions

When I was first practicing law, I quickly learned that the answer to many legal questions under National Labor Relations Act depends on which Board’s decision you pick. If the Board has a majority of Members (the name for those people who issue decisions) appointed by a Republican President, I was likely to find an answer that would please my management clients (and the partner who asked me to do the research). By contrast, if the Board’s majority was comprised of appointees named by a Democrat President, the outcome would vex my clients. In other words, the “rules of the game” shift with administrations.…

Continue Reading Say What? NLRB Rules Employees May Tape Record Others in Violation of State Law.

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…

The National Labor Relations Board (“NLRB” or the “Board”) took significant steps to limit the power of property owners to restrict contractors’ workers access to their property in a 3-2 decision on Friday. In Bexar County II, the Board reverted to the test articulated in New York New York Hotel & Casino, 356 NLRB 907 (2011), concluding that property owners may only restrict access by contractors’ workers when the workers’ activities “significantly interfere” with the use of the property, or where the property owner has “another legitimate business reason” to remove them from their property.
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Continue Reading The NLRB’s Reinstatement of a Worker-Friendly Standard for Property Access

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

As we predicted when President Biden took office, the National Labor Relations Board has now returned to an Obama-era standard that permits a union to organize in as small a unit as it has support (i.e., micro-units). This continues the Biden administration’s trend of easing the path to unionization.
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Continue Reading The Return of the Micro-Unit: The NLRB Shifts Course Yet Again

On Tuesday, December 13, 2022, the National Labor Relations Board issued a wide-reaching decision expanding the remedies available to workers subjected to unfair labor practices by either unionized or non-union employers.  In Thryv, Inc., the Board stated it will add compensation “for all direct or foreseeable pecuniary harms” to its customary “make-whole” remedy, which typically has consisted of back pay along with reinstatement. The Board will consider “all direct or foreseeable pecuniary harms” in any case that calls for relief to make employees whole for unfair labor practices, not just egregious violations.  The Board, however, declined to extend make-whole relief to pain and suffering or emotional distress, as advocated by its General Counsel, or to front pay, compensation for legal fees, or heightened bargaining remedies, as sought by other interested entities through amici (i.e. “friend of the court”) briefs.
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Continue Reading NLRB Expands its Make Whole Remedy to Include “Direct or Foreseeable” Financial Harms

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.
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Continue Reading NLRB Issues Proposed Rule Nixing Trump-Era Rule, Reinstating Protections for Union’s Representation Status

In the latest salvo in the battle over the classification of workers as independent contractors or employees, the U.S. Department of Labor announced the publication of a new proposed interpretation. The final document set forth in  Notice of Proposed Rulemaking will not be an actual rule or regulation, because the DOL has no statutory authority to define the distinction between independent contractors and employees in a way that is binding on courts. Rather, the interpretation is published as a guide as to how the Department will enforce the Fair Labor Standards Act, and in the hope that courts will defer to the DOL’s views on the subject.
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Continue Reading Department of Labor Proposes Independent Contractor Interpretation

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.
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Continue Reading In Precedent-Shifting Decision, NLRB Says Dues Checkoff Survives CBA Expiration