Labor law roundup

I hope this won't ruin your Labor Day weekend.

The employer-unfriendly decisions from the National Labor Relations Board have been coming fast and furious. In honor of the holiday, here's a short recap.

As you probably know, the five-member NLRB until last week had three Democrats, one Republican, and one vacancy. In other words, a Democratic majority.* And as one would expect, they've been overruling Trump-era decisions right and left.

*One Democrat, Gwynne Wilcox (D), left the Board when her term expired this past Sunday. But, before she left, she joined in the decisions I'll be talking about. UPDATE (9/8/23): This week, the U.S. Senate confirmed Ms. Wilcox's nomination for another term on the NLRB.

Before I start, I'd like to give a huge hat tip to labor lawyer extraordinaire Tim Davis of our Kansas City and St. Louis offices, and to David Phippen of our Washington D.C.-Northern Virginia Office, also a bang-up labor lawyer who writes outstanding bulletins that educate the rest of us about what is going on. Nearly everything in this post came from Tim or David. (So if you don't like it, complain to them, not me. Heh.)

Here is where we stand now. The following is not a comprehensive list, but it will give you a (bad) taste of what has gone on. I'll proceed in chronological order.

Expanded remedies for unfair labor practices. The National Labor Relations Act authorizes the Board to award back pay and back benefits to an employee whose rights are violated. In December 2022, the NLRB expanded that to include "all direct and foreseeable pecuniary harms" resulting from the violation. Presumably this would include things like having to pay higher interest rates to get a car loan because of a poor credit rating that resulted from an unlawful discharge. The Board said that "compensatory damages," which would include damages for emotional distress, and punitive damages are not recoverable. I guess that's something.

Teeny-tiny bargaining units. Also in December, the Board made it much easier for unions to prevail on claims that "micro" bargaining units were appropriate. As David said at the time, "The new standard will make it easier for unions to obtain representation elections in relatively small bargaining units, increasing the likelihood that the workforce will have piecemeal representation and that employers may have to bargain with more unions and deal with more bargaining units, even within a single worksite."

Separation and (in all likelihood) settlement agreements. In February of this year, the Board ruled that non-disparagement and confidentiality provisions in separation agreements with non-supervisory employees were unlawful because they could have a chilling effect on the employees' ability to engage in protected concerted activity. (Here is my employment lawyer's take on the ruling.) As a result of this decision, we recommended that employers revamp the separation and settlement agreements used with non-supervisory* employees. Fortunately, the Board did clarify that it was still all right for employers to require that the amounts paid under the agreements be kept confidential.

*With some exceptions, these Board rulings apply only to employees who are not "supervisors" within the meaning of the NLRA. It is important for employers to be aware that, under the NLRA, "supervisor" is not synonymous with "white-collar" or "overtime-exempt" or "highly skilled" or "individual contributor." You actually have to supervise employees to be a "supervisor" under the NLRA.

Misconduct that occurs in connection with protected concerted activity? Probably protected! In the old days (that would be, like, last March), an employer could take action against an employee who engaged in misconduct, even if that misconduct occurred in connection with protected concerted activity. At least, as long as the misconduct -- not the protected activity -- was what motivated the employer. Well, that's all over. The Board in May adopted a standard that is much more indulgent toward misbehaving employees.

Quickie elections are back, baby! Or they will be, starting December 26. Merry Christmas. In May, the NLRB issued regulations providing for so-called "ambush," or "quickie," elections for union representation. Will this become almost moot in light of what the Board did last week? (See "Elections? Fugeddaboutit," below.)

Rewrite those employee handbooks! Just last month, the NLRB decided that virtually all employer policies and rules have a chilling effect on employees' rights to engage in protected concerted activity. I'm exaggerating, but not much. As David says,

Under the new standard, which the Board is applying retroactively, any employer workplace rule that could (not “would”) reasonably be interpreted by an employee as restricting or interfering with any sort of protected concerted activity or other employee rights protected by the NLRA is presumptively unlawful “interference.” This is so even if there exist more reasonable interpretations of the rule, and even if there is no evidence that the rule actually caused any “interference.”

(Emphasis in original.)

Elections? Fugeddaboutit. Last week, the Board decided that an employer has only 14 days to petition for an election if a union claims it has the support of the majority of employees in the proposed bargaining unit. Even worse, if the employer is found to have committed an unfair labor practice, the Board can simply direct the employer to bargain with the union without even allowing the employees to vote on representation. And guess who decides whether the employer committed a ULP? Why, the Board, of course. As David and Tim wrote,

The decision’s mandatory process and new standard create an increased incentive for unions to pursue ULP allegations for any pre-election conduct by employers. That, in turn, could allow unions to halt elections that they fear they might lose for any reason, including lack of majority support. In many cases, unions may believe that they have better chances with the Board majority – especially the current Board – than with a majority of employees.

Are you completely depressed yet? Here are three more from this week. The Board

  • Made it easier for employees and unions to prove that an employee acting alone is really engaging in protected "concerted" activity.
  • Limited employers' rights to make unilateral changes to working conditions when a labor contract has expired and is being renegotiated, even if the changes are consistent with past practice. (Here and here.)

You will need your three-day weekend to get over this. 

Image Credits: From the mural "Detroit Industry" by Diego Rivera, Detroit Institute of Arts.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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