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On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S. Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighted AI as a chief concern and in April the White House released an AI Bill of Rights. Through the Order, described as a “Federal Government-wide” effort, the administration charges a number of federal agencies, including most notably, the Department of Labor, with addressing the impacts of employers’ use of AI on job security and workers’ rights. …
Continue Reading Biden’s AI Order and the Implications for Employers

On October 27, 2023, the National Labor Relations Board (“NLRB”) published its anticipated Final Rule modifying the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”).  See Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (October 27, 2023) (to be codified at 29 C.F.R. pt. 103).  The Final Rule overrules the NLRB’s 2020 joint-employer rule and broadly expands the definition of joint-employer.  …
Continue Reading NLRB Issues Final Joint Employer Rule

The National Labor Relations Board (NLRB) and the Occupational Safety Health Administration (OSHA) recently signed a Memorandum of Understanding (MOU) to coordinate investigations and enforcement actions between the two agencies. The MOU is the latest step by OSHA to blur the lines between workplace safety law and labor law, and could result in more workplace citations from OSHA or unfair labor practice charges filed with the NLRB. …
Continue Reading NLRB and OSHA to Enhance Enforcement Cooperation

The National Labor Relations Board (“NLRB”) recently adopted a Final Rule regarding representation-case procedures (“2023 Rule”). The 2023 Rule substantially rescinds the 2019 amendments to the representation-case procedures (“2019 Rule”), and returns to the 2014 procedures (“2014 Rule”). The 2023 Rule is effective for all representation case petitions filed on or after December 26, 2023.
Continue Reading NLRB Returns to Ambush Representation Election Rules

A National Labor Relations Board Administrative Law Judge dismissed the General Counsel’s allegation that the employer violated the National Labor Relations Act by not giving the union representing its employee notice and opportunity to bargain over the discharge of an employee it represented. In doing so, the Administrative Law Judge teed up the issue for the Board to change the law on appeal. …
Continue Reading Get Your Bargaining Shoes On

National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo recently issued a memorandum announcing her broad opposition to non-compete agreements. In GC Memo 23-08, Abruzzo set forth her belief that, “the proffer, maintenance, and enforcement of [non-compete] agreements violate Section 8(a)(1) of the Act.” …
Continue Reading NLRB General Counsel Targets Non-Compete Agreements

On May 1, 2023, the National Labor Relations Board issued its decision in Lion Elastomers, 372 NLRB No. 83 (2023), which will make it more challenging for employers to discipline workers who engage in abusive workplace conduct in connection with Section 7 activity under Board law. The decision overrules General Motors, 369 NLRB No. 127 (2020), which logically and uniformly applied the Board’s traditional Wright Line burden-shifting framework to cases involving employee outbursts. The Board’s decision reinstates a triad of “setting-specific” tests previously used to determine whether an employee’s opprobrious conduct forfeited the Act’s protection. …
Continue Reading NLRB Restores Leniency for Employee Abusive Conduct and Workplace Outbursts

The National Labor Relations Board (“Board” or NLRB) recently decided in Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) to impose extraordinary remedies upon an employer who violated a court order imposing certain collective bargaining obligations and committed multiple violations of the NLRA throughout the collective bargaining process. The extraordinary remedies included: the posting and distribution of a notice explaining employee rights under the NLRA (in addition to the standard notice that states the NLRB found NLRA violations, the violator will not commit those violations in the future, and the remedies); the reading of the notices in the presence of employees by the employer’s chief executive officer, or, if the employer prefers, by a Board agent in the presence of the CEO; and site visits by an NLRB agent to determine compliance for one year.
Continue Reading NLRB Discusses Extraordinary Remedies Available for Egregious or Habitual Violations

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

On March 22, 2023, the General Counsel of the National Labor Relations Board (NLRB or the “Board”), Jennifer Abruzzo, issued a memorandum providing guidance in light of the NLRB’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023). As previously reported, the Board in McLaren Macomb held that overly broad non-disclosure and non-disparagement provisions in severance agreements violate employee rights under the National Labor Relations Act (NLRA or the “Act”). The General Counsel’s memorandum—which is directed to the Board’s regional offices over which she exercises supervisory authority—seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors. The memorandum is not legally binding, but it does give employers a more informed roadmap for how the Board initially will handle unfair labor practice (“ULP”) charges challenging severance agreements.…

Continue Reading NLRB General Counsel Issues Guidance Memorandum Regarding Severance Agreements