Several prominent business groups filed an amicus brief in the Supreme Court of the United States on July 24 urging the Court to reform its standard on agency deference and highlighting the unpredictability caused by the National Labor Relations Board’s (“NLRB”) current application of the lenient standard.
Continue Reading Business Groups Tap Hunton for Amicus Filing in Supreme Court Agency Deference Case
The National Labor Relations Board’s (NLRB or the “Board”) Office of General Counsel (“GC”) released an internal advice memorandum on February 27, 2023, which indicates that the NLRB will seek to enforce the National Labor Relations Act (NLRA or the “Act”) against employers that allegedly retaliate against employees for having workplace discussions about racism. The memorandum—which concerned employment actions the Kaiser Permanente Bernard J. Tyson School of Medicine, Inc. (the “Tyson Medical School”) took with respect to a faculty member/physician following various discussions about race in the workplace—sets forth an expansive interpretation of conduct that constitutes protected concerted activity under Section 7 of the Act so as to include general discussions “working to end systemic racism, including its impact at the [e]mployer.”
Continue Reading The National Labor Relations Board Seeks to Regulate Discussions of Race in the Workplace
Dozens of business groups submitted comments on December 7 to oppose the National Labor Relations Board’s proposed joint employer rule, arguing it would interfere with business-to-business contracting and needlessly entangle companies in collective bargaining negotiations related to employees they do not control.
Continue Reading Business Groups Oppose NLRB’s Proposed Far-Reaching Joint Employer Rule
Yesterday, the National Labor Relations Board (“Board” or “NLRB”) in American Steel Construction, Inc., 372 NLRB No. 23 (2022) decided that employers must meet a heightened burden to expand a voting unit sought by a union in a union election. The decision is a significant development because it makes it easier for unions to organize workforces. And it marks yet another reversal of precedent by the Board to the benefit of unions. (We’ve discussed prior reversals here and here.)
On Monday, October 31, National Labor Relations Board General Counsel Jennifer Abruzzo issued GC Memo 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.” Specifically, the Memo seeks to address the growing employer use of “a diverse set of technological tools and techniques to remotely manage workforces.” Examples of these technologies include wearable devices, security cameras, GPS tracking devices, keyloggers, and audio recordings.
Continue Reading NLRB GC To Urge Board to Regulate Electronic Worker Monitoring and Management
Yesterday, a California State Assembly Committee killed a bill that would have extended collective bargaining rights to a larger group of state employees – namely, legislative staffers. Existing state law excludes certain state employees from collective bargaining. The Legislature Employer-Employee Relations Act would “provide employees of the Legislature the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” If passed, the bill would extend collective bargaining rights to nearly 2,000 California legislative employees. California’s Public Employment and Retirement Committee rejected the bill in a 2-3 vote this Wednesday, due to unresolved “procedural, legal, and administrative problems,” according to the Committee Chair.
Continue Reading California Legislature Votes ‘No’ On Legislative Staffer Unionization
The National Labor Relations Board indicated in January that it may reconsider its legal standard for assessing whether employer work rules violate the National Labor Relations Act, and invited amicus briefs on the subject. Several business groups, including the Chamber of Commerce of the United States of America, filed briefs on March 8, 2022 urging the Board to maintain its existing standard under The Boeing Co., 365 NLRB No. 154 (2017).
Continue Reading Business Groups Oppose NLRB’s Efforts to Change Work Rules Standard
On July 29, 2021, the U.S. Department of Labor filed a final rule rescinding the Trump-era “Joint Employer Status Under the Fair Labor Standards Act” rule (29 CFR part 791), which went into effect on March 16, 2020.
Continue Reading DOL Finalizes Rescission of Trump’s Joint Employer Rule
It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.
Continue Reading It’s Time Again for Employers to Ensure Handbook Compliance
On December 21, 2020 the NLRB adopted an ALJ’s determination that a union’s request for information about non-bargaining unit employees was relevant. One of the issues present in the case was whether a union’s request for information about non-bargaining unit employees sought relevant information. The NLRB upheld the ALJ’s determination that the information was relevant solely because the employer should have known the information was relevant based on the circumstances surrounding the request.
Continue Reading Information on Non-Unit Employees May Become Relevant Once Grievance Filed