Labor Law & NLRB

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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

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.
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Continue Reading NLRB Proposes Return to a More Expansive Joint Employer Standard

On Monday, August 29, 2022, the National Labor Relations Board issued its first precedent-shifting decision under the Biden administration, which will have the effect of permitting more apparel with union insignia in the workplace.

The Law on the Display of Union Insignia. An employer’s interference with an employee’s display of union insignia on their apparel is presumed to be unlawful, unless the employer can demonstrate “special circumstances” to justify the interference. Special circumstances are found when the display jeopardizes employee safety, equipment or product safety, or unreasonably interferes with a public image which the employer has established as part of its business plan. The Board had previously held in its 2019 Wal-Mart Stores decision that the “special circumstances” test applied only when an employer completely prohibited union insignia, and that certain size-and-appearance restrictions on union insignia could be lawful based on less compelling employer interests. However, the Board has now reversed itself in Tesla, Inc. to assert that the special circumstances test will apply to any restriction, and not just total bans.…

Continue Reading Employers – Be Prepared for More Union Apparel in the Workplace

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…

A day after President Biden announced his COVID-19 Action Plan (which we discussed here), leaders from the Occupational Safety and Health Administration held a short briefing to discuss its forthcoming Emergency Temporary Standard that will require employers with 100+ employees to (1) mandate vaccinations or weekly testing, and (2) provide paid vaccination leave. The President’s announcement regarding these requirements was sorely lacking in details, but the OSHA briefing provided a few (not many) useful tidbits for nervously wondering employers.  (Be aware, however, that the ETS is not yet written, and it is possible that some of what they said today might not end up being accurate….)…
Continue Reading A Few More Answers from OSHA on the Impending Vaccination ETS…