Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Co-Chair, Global Employment and Labor Practice

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

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On May 30, 2023, the National Labor Relations Board’s (the “NLRB’s”) General Counsel Jennifer Abruzzo (the “General Counsel”) issued <a href="https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-issues-memo-on-non-competes-violating-the-national" target="_blank">Memo General Counsel 23-08</a> (the “Memo”), expansively finding that non‑competes with employees violate the National Labor Relations Act (the “Act”), except in limited circumstances. As <a href="https://elc.mofo.com/topics/nlrb-gc-takes-broad-view-of-the-mclaren-macomb-decision" target="_blank">foreshadowed in her memo</a> on the NLRB’s enforcement against overbroad non‑disparagement and confidentiality clauses related to the McLaren Macomb decision, the General Counsel claims, without clear legal authority or other support, that offering, maintaining, or enforcing non‑competes and non-solicits with employees violates Section 7 of the Act where they reasonably tend to chill employees from engaging in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Memo lists a variety of rationales, including non-competes with low-wage workers, to justify the General Counsel’s finding. The Memo, however, fails to articulate any clear examples of how non-competes interfere with traditional “concerted activities” protected by the Act, particularly in any manner to justify the sweeping scope of non-competes the Memo appears to find are unlawful. The Memo simply declares that non-competes are unlawful under the Act unless the employer can show that the non‑compete is “narrowly tailored to special circumstances justifying the infringement of employee rights.” Read the <a href="https://www.mofo.com/resources/insights/230605-nlrb-general-counsel-memo-seeks-aggressive-enforcement?utm_source=publication&utm_medium=email" target="_blank">full client alert</a>.

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Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

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Melissa Harclerode is an associate in Morrison Foerster’s Employment + Labor Group in the Washington, D.C. office.

Melissa M. Harclerode

Melissa Harclerode

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On May 30, 2023, the National Labor Relations Board’s (the “NLRB’s”) General Counsel Jennifer Abruzzo (the “General Counsel”) issued Memo General Counsel 23-08 (the “Memo”), expansively finding that non‑competes with employees violate the National Labor Relations Act (the “Act”), except in limited circumstances.

NLRB General Counsel Memo Seeks Aggressive Enforcement Against Employee Non-Competes

The General Counsel for the National Labor Relations Board (the “NLRB”) recently issued Memorandum GC 23-05 (the “Memorandum”), expansively interpreting the reach of the McLaren Macomb (“McLaren”) decision and raising more questions about how companies can lawfully use non-disparagement and confidentiality clauses going forward. As we previously reported, in McLaren, the NLRB found that non-disparagement and confidentiality provisions in a severance agreement violated the National Labor Relations Act (“NLRA”), where those provisions had “a reasonable tendency” to interfere with employee NLRA Section 7 rights. Although the Memorandum clarifies some points from McLaren, the General Counsel provides no examples of lawful confidentiality and non-disparagement provisions and seeks to expand the reach of McLaren beyond the facts of that case to cover other types of employment agreements and provisions. Companies should carefully consider the Memorandum when drafting, offering, or enforcing non-disparagement and confidentiality provisions with current and former employees.Read our <a href="https://www.mofo.com/resources/insights/230410-nlrb-gc-broad-view-mclaren-macomb-decision" target="_blank">client alert</a>.

NLRB GC Takes Broad View of the McLaren Macomb Decision

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NLRB GC Takes Broad View of the McLaren Macomb Decision

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

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The General Counsel for the National Labor Relations Board (the “NLRB”) recently issued Memorandum GC 23-05 (the “Memorandum”), expansively interpreting the reach of the McLaren Macomb (“McLaren”) decision 

In a reversal of Trump-era National Labor Relations Board (the “Board”) precedent, the Board found last week in McLaren Macomb that non-disparagement and confidentiality provisions in a severance agreement violate the National Labor Relations Act (“NLRA”) if those provisions have “a reasonable tendency” to interfere with an employee’s NLRA Section 7 rights. The Board also held that merely offering an agreement with such provisions to an employee is unlawful, even if the employee does not sign it or the employer does not enforce it.Read our <a href="https://www.mofo.com/resources/insights/230228-nlrb-limits-use-of-non-disparagement" target="_blank">client alert</a>.

NLRB Limits Use of Non-Disparagement and Confidentiality Provisions

In a reversal of Trump-era National Labor Relations Board (the “Board”) precedent, the Board found last week in McLaren Macomb that non-disparagement and confidentiality provisions in a severance agreement violate the National Labor Relations Act (“NLRA”) if those provisions have “a reasonable tendency” to interfere with an employee’s NLRA Section 7 rights.

NLRB Limits Use of Non-Disparagement and Confidentiality Provisions

With the onslaught of various state and local shelter-in-place orders, new health and safety guidelines for workplaces, and the ensuing economic downturn, many companies need to act quickly to address the unprecedented challenges due to the COVID-19 pandemic. When responding to these challenges, both unionized or non-union employers should be careful not to run afoul of the National Labor Relations Act (“NLRA” or the “Act”). Below, we provide some practical guidance for employers on how to avoid labor law violations when confronting these issues in their workplace.<h4>PROTECTED CONCERTED ACTIVITY</h4>Section 7 of the NLRA generally applies to all U.S. employers, whether they are unionized or not. Section 7 of the Act guarantees employees (except for management and supervisors), even if they are not part of a union, “the right to … engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”An employee’s right to engage in protected concerted activity under Section 7 has been interpreted broadly. One clear example of concerted activity is when two or more employees complain to their employer about workplace health and safety conditions. An individual who brings a complaint on behalf of a group of employees to the attention of management or seeks to initiate, induce, or prepare his or her coworkers to engage in group action may also be engaging in concerted activity under the Act. Disciplining or discharging the employee for engaging in concerted activity constitutes an unfair labor practice (“ULP”), for which the National Labor Relations Board (“NLRB”) could seek make-whole remedies, including reinstatement and backpay.  Can an Employee Refuse to Work for COVID-19 Concerns?Employers need to be cautious when responding to employees refusing to work due to safety concerns. If an employee raises concerns, even if he or she is mistaken about the risk, the employee may be engaging in protected activity under the NLRA. Employers should assess those concerns carefully before taking any adverse action.  Can an Employee Be Asked to Remove a Negative Post on Social Media About His or Her Employer’s Response to COVID-19? Employees can engage in protected concerted activity on social media. If an employee posts comments on social media that could reasonably be viewed as trying to encourage other employees to band together to protest workplace issues, such as workplace safety or an employer’s decision to cut employee wages or furlough employees, it could qualify as protected activity.<h4>COLLECTIVE BARGAINING</h4>Employers who have employees represented by a union are generally prohibited from making unilateral changes to the terms and conditions of employment for those employees without first bargaining with their union. Employers are required to bargain with the union over mandatory subjects of bargaining that “vitally affect” the represented employees’ wages, hours, and working conditions, such as changes to employees’ jobs (e.g., work assignments, pay, schedules, etc.), changes to workplace health and safety standards, and layoffs or furloughs of represented employees. Making unilateral changes without first providing the union notice and a meaningful opportunity to bargain can result in ULP charges or orders requiring the employer to bargain with the union before proceeding with the change.Given the numerous state shelter-in-place orders, as well as the health, safety, and economic challenges employers are facing from the growing COVID-19 pandemic, many employers need to act swiftly to make changes to their workforce. Some employers may not be able to undertake traditional bargaining with union representatives, particularly if their businesses are being forced to close as nonessential services under shelter-in-place orders. Although employers, in many instances, will still need to adhere to their obligations under their collective bargaining agreements (“CBAs”) and the NLRA, they may have some flexibility when implementing certain changes.Is Bargaining Required? An employer that needs to make changes to wages, hours, or other terms and conditions of employment that are mandatory subjects of bargaining should first review their applicable CBA and memorandums of understanding with the union to determine if those subjects are already covered or if it has discretion to act. A CBA may already address how to handle certain situations or include a protocol for making those changes. For example, if the employer is contemplating layoffs, the CBA may already provide a protocol for layoffs that would work for the employer’s current circumstances. If the CBA does not address the needed action or the company needs to change the CBA protocol in order to respond to the current COVID-19 situation, employers should consider options that might allow them to take unilateral action. These options can include:<ul><li>Checking the management rights clause in their CBA to see if they have the right to unilaterally make the contemplated change;</li></ul><ul><li>Determining whether their CBA has a force majeure clause that would cover the COVID-19 pandemic; or</li></ul><ul><li>Considering whether there is an applicable exception to bargaining given the exigencies of the current situation.</li></ul>As a practical matter, even when an employer does not have to bargain, it may want to notify the union in advance of implementing the change to preempt any dispute and determine whether the parties can reach a mutually acceptable agreement. An employer may also have a good relationship with its union, and the union may be willing to provide concessions, particularly in these circumstances where the employer may need to make changes to avoid potential furloughs, layoffs, or shutdowns in the near term. Employers should consider the impact of making unilateral changes on their ongoing relationship with their unions and employees, which may prove critical if the employer needs to ramp up again quickly.Does a Management Rights Provision in a CBA Relieve an Employer from Bargaining?Many CBAs contain a management rights clause that reserves the employer’s right to decide certain workplace issues during the term of a CBA. Some management rights clauses will expressly allow employers to take unilateral action to determine various issues for the workforce, such as schedules, work rules, staffing size, and other critical issues.The Board recently adopted the more lenient “contract coverage” standard to determine whether the management rights clause in a CBA allows employers to act unilaterally.[1] Under the “contract coverage” standard, the Board reviews the plain language in the CBA to determine whether the change is permissible. If the unilateral actions are “within the compass or scope” of the CBA, the change will not violate the NLRA. However, if the unilateral action is not “within the compass or scope” of the CBA, the employer will violate the NLRA unless it can show that the union “clearly and unmistakably waived its right to bargain” the change or that unilateral action was privileged for some reason.Applying that standard to current COVID-19 context, a broad management rights’ provision in the CBA that grants the employer the right to implement new rules and policies and to revise existing ones could allow the employer to unilaterally implement new attendance or safety rules without violating the Act. Some management rights provisions also allow employers to layoff employees without bargaining.Will the Force Majeure Clause in the CBA Allow Unilateral Changes?A force majeure clause is a contractual provision that excuses a party’s performance of its obligations under the contract if performance because impossible or impracticable. For example, following the September 11, 2001 attacks, Northwest Airlines Corp. invoked the force majeure clause in its CBAs to layoff a substantial number of its employees, in response to which one of the unions filed a grievance.[2]Many CBAs do not have a force majeure clause. Even if the applicable CBA contains such a clause, whether the current COVID-19 situation triggers the force majeure clause will vary by employer, depending on the exact language of the contract provision and the effect that the COVID-19 situation is having on the business.Is There an Exception to an Employer’s Bargaining Obligations Under the NLRA?The Board has held that an employer is authorized to make unilateral changes when “economic exigencies” compel prompt action. An underlying reason for not requiring bargaining when there is an economic exigency is that “an unforeseen occurrence, having a major economic effect, is about to take place that requires the company to take immediate action.”[3]Economic exigency requires a “compelling business justification,” and an employer that attempts to prove economic exigency carries a “heavy burden.” A mere business necessity or inconvenience does not equate to an economic exigency that excuses bargaining. For example, “loss of an account representing 14 percent of revenue” was found not to qualify as an economic exigency.[4] Whether the COVID-19 situation triggers the economic exigency, exception will depend on the employer’s particular circumstances. The NLRB’s General Counsel recently issued a memo on March 27, 2020 providing examples of circumstances where employers experienced economic exigencies that allowed them to avoid decision bargaining. Although the memo does not provide specific guidance on bargaining obligations relating to COVID-19, some of the cases referenced indicate that a number of employer actions directly due to the COVID-19 situation could qualify for the economic exigencies exception. For example, in Port Printing & Specialties,[5] where the parties did not have an existing CBA, the Board held that an impending hurricane and the mandatory citywide evacuation that was ordered in anticipation of the hurricane were uniquely exigent circumstances that privileged the employer to layoff employees without bargaining it decision with the union. The Board, however, found that the employer violated the NLRA by not offering to bargain the effects of the layoff. While this guidance is helpful, an employer that plans to justify a unilateral change based on the economic exigency exception needs to be prepared to show that the change was compelled by the exigency and that the exigency was caused by external events, was beyond the employer control, or was not reasonably foreseeable.  Must an Employer Still Bargain the Effects of Its Change?The legal grounds that justify an employer’s unilateral change may not necessarily relieve the employer of its notice and bargaining obligations with the union, at least with respect to the effects of the change. For example, an employer’s decision to partially close one of its facilities may trigger the employer’s obligation to bargain over the effects of the closing on its unionized employees. Bargaining over the effects of such a decision “must be conducted in a meaningful manner and at a meaningful time, and the Board may impose sanctions to insure its adequacy.”[6] Even if an employer feels legally comfortable moving forward with a unilateral change, it should be prepared to engage in good faith negotiations over the effects of that change.If Bargaining Is Required, How Can It Be Done in Light of Imminent Need to Act and Social Distancing Challenges?The NLRA requires employers to give “adequate” notice and bargain in good faith with the union until it either reaches a deal or reaches impasse. Impasse typically occurs when, after exhaustive good faith negotiations, the parties are no longer willing to make concessions. How quickly impasse can be reached depends on the circumstances.Employers needing to act quickly to respond to the COVID-19 epidemic can likely give the union expedited notice of the change and request the parties bargain quickly given that time is of the essence. If it is a single issue, the notice and meaningful opportunity to bargain needed to reach impasse can be done quickly. Depending on the circumstances, an employer may be able to reach impasse with the union on a single issue within a few days.In some situations, the employer may need to postpone bargaining sessions, such as a situation where the employer is currently bargaining a new CBA. In those instances, employers may want to ask the union if it will agree to temporarily postpone bargaining (e.g., 30-60 days) until the COVID-19 situation appears to be receding. If a union is unwilling to postpone bargaining and the employer cannot meet, the employer should communicate the business and operational reasons for needing to delay bargaining. The key is proactive and timely communication with the union.The various state shelter-in-place orders and need for social distancing may cause practical challenges for bargaining too. Usually good-faith bargaining requires face-to-face meetings at regular times. However, because the current situation is not business as usual and a union cannot compel the employer’s bargaining team to meet in person, particularly in violation of governmental orders, employers and unions can bargain by video conference or phone and exchange proposals by email. The <a target="_blank" href="https://www.fmcs.gov/">Federal Mediation and Conciliation Service</a> even offers certain technology to assist parties with bargaining in light of the pandemic.How Does the Current Pandemic Impact Obligations for Responding to Information Requests? Under the Act, the employer has a duty to supply the union with information that is “relevant and necessary” to allow the union to bargain intelligently and effectively with respect to wages, hours, and other conditions of employment. For example, if the union asks the employer for the employer’s business plan in response to the COVID-19 situation, the employer may need to provide that information. The employer should try to provide its response by the deadline requested by the union and if it is unable to meet the union’s deadline, still stay engaged with the union and inform the union of the delay. Once the employer has gathered the relevant information or has otherwise determined that the requested information does not exist or is impossible to gather, the employer should respond in writing to the union. If the information requested is particularly sensitive and contains confidential information, the employer may wish to contact the union to see if an accommodation can be reached, such as limiting the use of the information through a confidentiality agreement. <h4>UNION ELECTIONS</h4>On March 19, 2020, the Board <a target="_blank" href="https://www.nlrb.gov/news-outreach/news-story/national-labor-relations-board-suspends-representation-elections-through">announced</a> that it was suspending all representation elections effective immediately through and including April 3, 2020. Although an employer has a free speech right to communicate with its employees, if the employer is facing a pending election, it should still be cautious in its communications with its employees as to avoid any accusation that it improperly tainted the union election. For example, the employer should not say anything to its employees that could be deemed a threat for voting for the union or a promise for certain benefits in exchange for voting against the union. <h4>UNION STRIKES</h4>Most CBAs contain a provision prohibiting employees from striking during the term of the CBA. This provision would preclude employees from striking if an employer refused to modify the CBA mid-term, such as employees striking because the employer refused to changes hours or other working conditions to respond to issues related to COVID-19. Employers, however, should be mindful that even if the applicable CBA contains a no-strike provision, under the Act, refusal to work because of “abnormally dangerous conditions” is not a strike in violation of a no-strike clause.  For example, certain employees may argue that they are not being provided sufficient protective equipment, such as masks or gloves, while interacting in person with hundreds of potentially contagious customers per day. The employees’ decision to walkout of the job based on a good faith and objective belief that their working conditions are “abnormally dangerous” may not be violating the CBA.The answer to many of the issues discussed above is heavily fact-based, and we may see new developments arise in the traditional labor area in response to the COVID-19 situation. We are closely monitoring various developments related to the COVID-19 situation and regularly updating our Coronavirus (COVID-19) Resource Center with advice on the myriad issues that continue to develop. [1] MV Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019).[2] Newsome v. Northwest Airlines Corp., 225 F. Supp. 2d 822 (W.D. Tenn. 2002). This case was decided under the Railway Labor Act, which applies to airlines, railroads, and related companies. It is not binding precedent under the NLRA.[3] Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747, 755-56 (6th Cir. 2003).[4] Angelica Healthcare Servs. Grp., 284 NLRB 844, 853 (1987).[5] 351 NLRB 1269 (2007). [6] First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 681-82 (1981).

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Avoiding Labor Violations When Responding to the COVID-19 Pandemic

Practical Considerations for Requiring Employees to Report to Work in Light of COVID-19 Stay-at-Home Orders

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With the onslaught of various state and local shelter-in-place orders, new health and safety guidelines for workplaces, and the ensuing economic downturn, many 

Avoiding Labor Violations When Responding to the COVID-19 Pandemic

When Donald Trump took office in 2017, the members of the NLRB (Board) were predominantly appointees of President Obama.  During the Obama presidency, the Board issued decisions that were mostly favorable to the interests of organized labor and its employee-members.  Those decisions reversed years of Board precedent that had been relied upon by employers as they formulated company policies and made decisions about their relationships with employees and the unions representing them. The changes in the law made during this period have been described as “radical.”  These new decisions changed what employers were allowed to put in their employee handbooks, took away employers’ rights to restrict employees’ use of their email systems, and forced employers into joint employer relationships with the independent contractors performing work for them. The union movement was pleased.In 2017, President Trump named Peter B. Robb as the new General Counsel to the Board, replacing the former Obama appointee and beginning the Trump transformation of the Board. The General Counsel has significant responsibilities at the Board, including determining which cases will be prosecuted by the agency, and what theories of law will be advanced. In December 2017, Robb issued a memo to Board offices around the nation, instructing the offices to send certain cases to Washington, D.C. for advice on how they should be handled.In his memo, Robb advised the offices that it was mandatory that they seek his office’s advice on matters involving “cases over the last eight years that overruled precedent,” an undisguised announcement that he intended to undo eight years of Obama-inspired NLRB law.At the same time, as the terms of Obama-appointed members expired, Trump appointed new members to the Board who had a vision different than that of their predecessors.Trump appointees now dominate the Board and are guided by a General Counsel with a clear agenda to undo the work of the Obama Board.  The employer community is excited.Is the Trump Board and its General Counsel living up to employers’ expectations?  As the following sections of this article demonstrate, it would seem so.Employee Handbooks and Work RulesA number of decisions issued by the Obama Board strictly applied a standard developed in 2004 that held that, when judging the legality of provisions of employee handbooks or work rules,  either will be found to be illegal if employees could “reasonably construe” the policy or rule to somehow prevent them from exercising their rights under federal labor law. That very “flexible” definition was taken to its extremes by the Obama-appointed General Counsel at the time. It seemed that almost no handbook or work rule was safe from attack because some employee might “reasonably construe” it to interfere with his or her rights. During that period, many employee handbook policies were found illegal, including, for example, rules that forbade camera-enabled devices such as cell phones on an employer’s property, rules that prohibited criticizing an employer on social media, and rules restricting the making of recordings in the workplace.In December 2017, the new Trump Board issued a decision in The Boeing Company, 365 NLRB No. 154 (2017). Boeing had a long-held policy that prohibited the taking of pictures on its property. The purpose of the policy was to maintain the security of Boeing’s facilities and its proprietary information. Specifically overruling prior decisions, the Trump Board held that it would no longer judge employee handbook rules by the very fluid standard of finding a policy unlawful if an employee could “reasonably construe” a rule as somehow unlawfully restrictive of lawful conduct. In doing so, the Board noted that “over the past decade and one/half, the Board has invalidated a large number of common sense rules and requirements that most people would reasonably expect every employer to maintain.” In Boeing, the Board said that, in the future, it would consider the “nature and extent” of a challenged rule’s “potential impact on [employee legal rights]” and the “legitimate justification associated with the rule.” The Board then laid out three categories the Board would use in future analysis of workplace rules.Boeing makes it possible now for an employer to determine if a rule is legal, without the need to speculate if an employee could “reasonably construe” the rule to be illegal. The Boeing decision brings enormous relief to human resource directors across the nation who had been spending an inordinate amount of time trying to decide if any of its company’s rules were unlawful and litigating over rules that the Board considered a violation of employee rights.Micro UnitsIn another Obama-era decision, the Board held that if a union petitioned for an election among a specific group of employees, no matter how small the group, and those employees shared a “community of interest” among themselves, the Board would let an election proceed in that specific unit unless the employer could prove that other employees, not included in the unit shared an “overwhelming” community of interest with the petitioning group, an almost impossible standard to meet. The harm of allowing these “micro-units” to be formed is that some employees, working for an employer in the same location, sometimes even if they are working with another like group, could be represented by a union and their coworkers would not be represented.  Micro units create divisions in the workplace, undermine retail operations, and limit opportunities for employees who need to move easily across various aspects of an employer’s operations to gain advancement. The Trump Board, in PCC Structurals, Inc.,  365 NLRB No. 160 (2017), ended this foolishness and returned to the traditional community of interest standard that had been the rule during most of the Board’s history. Joint EmployersThe most reviled decision of the Obama Board was its decision in Browning-Ferris, 362 NLRB No. 186 (2015),  which loosened the standard for determining whether two separate employers should be considered “joint employers” and thus share each other’s labor law liability and bargaining obligations to a union.  Under Browning-Ferris, an employer could be considered a joint employer with one of its contractors or franchisees even if it merely had “indirect and unexercised control over the other party.” The traditional standard before Browning-Ferris required that an employer have “direct and immediate” control over the employees of another employer, such as setting the wages, hours, and working conditions of a franchisee’s employees, to be covered as a joint employer. The Obama Board’s revision of the standard to “indirect and unexercised” control put most national fast food chains at risk for liability for the acts and conduct of their franchisees, even those located thousands of miles from corporate headquarters. After a couple of false starts involving issues of whether the Trump Board’s members should hear a particular case that would have served as the vehicle for reversing Browning-Ferris and returning to the traditional standard, the Board decided to change the law through Rule Making, a process of issuing rules governing a certain issue rather than a decision following litigation. Not surprisingly, the Board’s proposed rule returns the law on joint employer to its traditional form.Use of Employer EmailIn Purple Communications, 361 NLRB No. 126 (2014), the Obama Board determined that employees should be allowed to use their private employer’s email system to discuss and further unionization. The U.S. Chamber of Commerce and other business groups argue that the decision takes away an employer’s right to control its own email systems.This issue is currently up for consideration in Caesars Entertainment Corp, 28-CA-060841. The Board has invited the public’s input on this issue and has set an October deadline for comments before it decides the case. Because of recent comments submitted in a footnote to a brief by the General Counsel in another case, it is expected that he will argue to the Board that Purple Communications should be reversed because the decision ignores the facts of the workplace and because there are First Amendment concerns about forcing an employer to pay for speech on its own email systems that it might oppose.More to Come? Of course there is.  There are many other cases and policies viewed by the employer community as improper and disruptive. For example, employers are hoping that the Trump Board will revise a Rule established by the Obama Board that created “quickie” or “ambush” elections,” requiring that elections be held almost immediately after a petition is filed, effectively denying an employer the time necessary to inform its employees of the consequences of unionization. The Board, of course, will wait for cases raising issues to come before it will address other Obama-era decisions.Ever since the Regan Administration there have been reversals of decisions by Democratic and Republican administrations alike. However, nothing before compares to what the Obama Board did and, of course, the Trump Administration is determined to undo much of the Obama Board’s work.

Boomerang: The Trump NLRB Supplants the Obama NLRB

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Boomerang: The Trump NLRB Supplants the Obama NLRB

Boomerang: The Trump NLRB Supplants the Obama NLRB

elcblog-october-2018

When Donald Trump took office in 2017, the members of the NLRB (Board) were predominantly appointees of President Obama.  During the Obama presidency, the Board