Amber M. Rogers

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The National Labor Relations Board (“Board” or NLRB) decided in McLaren Macomb, 372 NLRB No. 58 (2023) that an employer violated the National Labor Relations Act (NLRA) by offering furloughed employees severance agreements that contained confidentiality and non-disparagement provisions. “A severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their [NLRA] rights, and that employers’ proffer of such agreements to employees is unlawful,” announced the Board. In rendering the decision, the NLRB overruled Baylor Univ. Med. Ctr., 369 NLRB No. 43 (2020)[1] and IGT d/b/a Int’l Game Tech., 370 NLRB No. 50 (2020). In those cases, the Board decided that employers did not independently violate the NLRA simply by presenting employees with severance agreements containing non-assistance, non-disclosure, and non-disparagement provisions that arguably restricted NLRA rights absent some additional circumstances.
Continue Reading NLRB Rules Severance Agreements with Confidentiality Provisions Violate Employee NLRA Rights

As part of the bill funding the federal government, President Biden signed into law the Pregnancy Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act). These relatively unknown laws are important pieces of legislation carrying with them significant changes to the workplace for pregnant employees.
Continue Reading Under the Radar Laws Expand Protections for Pregnant Employees in the Workplace

On December 16, 2022, a National Labor Relations Board (Board) majority (Members Kaplan and Ring) issued a Decision and Order holding that an employer’s conduct did not warrant setting aside a union election where the employer failed to strictly adhere to regulations requiring employers to provide unions a voter list comprised of employee names and contact information (commonly known as an Excelsior list).
Continue Reading Common Sense Wins the Day (sort of) in Board Ruling Concerning Substantial Regulatory Compliance

On October 19, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released the new “Know Your Rights: Workplace Discrimination is Illegal” poster, which updates and replaces the previous “EEO is the Law” poster. Covered employers are required by federal law to prominently display the poster at their work sites.
Continue Reading Know Your Rights: EEOC Releases Updated Worksite Poster

Last week, the National Labor Relations Board (“Board” or “NLRB”) decided that an employer no longer can unilaterally stop union dues deductions from employee pay pursuant to a dues-checkoff clause once a collective-bargaining agreement (“CBA”) expires absent a lawful impasse during negotiations for a successor agreement. …
Continue Reading NLRB Says Employers Can No Longer Stop Union Dues Deductions When CBAs Expire

A recent memorandum released by National Labor Relations Board (Board) General Counsel Jennifer Abruzzo previews a Biden-appointed Board’s agenda and priorities. In the August 12, 2021 “Mandatory Submission to Advice” memorandum, General Counsel Abruzzo identifies three types of cases and subject matter areas that the General Counsel would like to “carefully examine.” These three types of cases and subject matter areas include: (1) cases where the Trump-appointed Board overruled past Board precedent, (2) “other initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones [the General Counsel] would like to carefully examine,” and (3) “casehandling matters traditionally submitted to Advice.” Accordingly, General Counsel Abruzzo has instructed the Board’s Regional Directors to seek advice for cases that fall into these three categories.
Continue Reading Memo from NLRB General Counsel Signals Upcoming Shifts in Board Precedent

Covid-19 has left employers who want their employees back in the office in a difficult position. With the pandemic still raging, many employees are fearful of returning to the office with unvaccinated peers. In order to ease their employees’ concerns and provide a safe work environment, some employers are offering incentives to get vaccinated.
Continue Reading Legal Considerations of Employer-Provided Covid-19 Vaccine Incentives

Given the pervasiveness of social media in society, the National Labor Relations Board has been forced to frequently weigh in on the intersection between employee and employer’s social media activity and labor law. The Board has released a great catalog of cases over the past decade touching on issues related to the workplace and social media—these issues range from what social media policies and employer may enact to what discipline an employer may impose for an employee’s social media conduct.
Continue Reading NLRB Finds Executive’s Joking Tweet Violated Federal Labor Law

COVID-19 has fundamentally changed the way representation elections are conducted.  From March 1 to November 16, 2020, the National Labor Relations Board issued 167 election decisions and, of those, only 2 manual elections have been directed to proceed in that time-frame.  This is a marked change in the Board’s longstanding preference for manual elections.  The overwhelming trend towards mail-in elections was necessitated by the COVID-19 pandemic. …
Continue Reading NLRB Provides Clarity On Pandemic-Related Circumstances Justifying Mail-In Elections

Due to the outbreak of COVID-19 and the inherent risks in holding large gatherings of people, the prospect of mail ballot elections has recently received considerable national attention. Typically, this attention is focused on how mail ballot elections might affect voter turnout or election results in state and federal elections and whether it might benefit one party over the other.
Continue Reading Mail Ballot Elections: The New “Preferred Method” for Holding Union Representation Elections?