In late 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced her agenda to seek changes in labor laws to protect employees from interference with their Section 7 rights. The items below outline how she moved forward in 2023.
Independent Contractor Test
The NLRB forged major changes to tests regarding the question “Who is my employee under the National Labor Relations Act (NLRA)?” In The Atlanta Opera Inc, NLRB 372 No. 95 (2023), the Board retooled the independent contractor test, applying stricter scrutiny that is more favorable for employees. And the Board set a new standard for determining joint-employer status. Under the new rule, 29 CFR 103(2023), the fact that an entity has the ability to control workers’ terms of employment is determinative, regardless of whether the entity exercises such control.
Takeaway: If you hire independent contractors or have a joint employment relationship, these new rules may change your status in relation to your workers.
Employers’ restrictions on workplace conduct are another topic undertaken by the Board. Lion Elastomers LLC II, 372 NLRB No. 83 (2023), another win for workers' rights, held that employees must be able to speak freely about their working conditions without fear of retaliation, even if they engage in abusive conduct. The NLRB’s decision in Stericycle, 372 NLRB No. 113 (2023) means employer workplace rules will be held to stricter scrutiny even where rules are facially neutral. The test is whether an employee can reasonably interpret the rule as coercive or “feel” it tends to chill employees’ exercise of protected rights.
Takeaway: Review your handbooks and written policies for rules that could violate the workers’ rights articulated in these cases.
The Board produced a decision with a laundry list of new remedies available for violations of the NLRA. In Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023), the employer engaged in serious misconduct and disregard for employees’ rights. The Board responded by creatively fashioning additional financial remedies that it felt were an appropriate response.
Takeaway: This Board will use its discretion to find new ways to punish employers’ egregious misconduct. Use caution when bargaining with the union or responding to workers’ actions.
The McLaren Macomb, 372 NLRB No. 58 (2023) decision applies to union and nonunion workplaces alike by greatly limiting the use of employee severance agreements. It targets confidentiality and non-disparagement clauses because the agreements were deemed to restrict employees in exercising their right to make public statements regarding their workplace. This decision applies retroactively.
Takeaway: Review and update your severance agreement and waiver and release templates. Consider previously executed severance agreements to see whether these have overbroad confidentiality and non-disparagement clauses.
The Cemex Construction Materials, 372NLRB No. 130 (2023) decision is poised to upend the unionization process by making it easier for unions to gain recognition and bargaining status. The process encourages voluntary recognition of a union through authorization cards. If the employer rejects the cards, it must seek an election within two weeks. The new election rules take effect December 28, 2023. If the Board finds egregious conduct by the employer, they can be forced to recognize and bargain with the union without an election.
Takeaway: Time is of the essence. Employers must act quickly when the rumor of union organizing is in the air. There won’t be much time to train your supervisors and run your anti-union campaign. Steer clear of unfair labor practices or you will be forced to recognize and bargain with the union.
We can expect more dramatic shifts in labor laws in 2024. For example, in a recent action against Starbucks, Abruzzo advocated a lower standard for establishing an adverse action (e.g., firing, discipline, or loss of benefits) against employees in cases alleging illegal discrimination by employers. If the board adopts this change, unions would only need to show unlawful conduct by the employer that “tends to interfere with workers’ rights to organize." (Starbucks Corp., N.L.R.B., Case 13-CA-300739, brief filed November 2, 2023)
If you have questions about how the above decisions affect your organization, please contact Employers Council.
#LaborRelations/Unions#CollectiveBargaining#ThreatenedOrganizationAttempts#ProtectedActivity