On the heels of the National Labor Relations Board’s decision in McLaren Macomb, which invalidated most confidentiality and nondisparagement provisions in a variety of employment agreements (as we covered here and here), NLRB General Counsel Jennifer Abruzzo (the “GC”) issued GC Memorandum 23-08 on May 30, 2023, announcing that, in her view, the proffer, maintenance, and enforcement of non-compete provisions violate Section 8(a)(1) of the National Labor Relations Act (the “Act”) except in very limited circumstances. This direct challenge to the lawfulness of commonly-used non-compete agreements mirrors the Federal Trade Commission’s (“FTC”) recent proposed rulemaking that would ban employers from imposing such agreements on their workers, and follows the Board’s memoranda of understanding with the FTC and the Department of Justice’s Antitrust Division, both of which addressed the anticompetitive effects of non-compete agreements (covered here).
On May 16, 2023, National Labor Relations Board General Counsel Jennifer Abruzzo (the “GC”) issued revisions to her original July 6, 2020 memorandum of suggested manual election protocols for use during the COVID-19 pandemic, found here. The Board’s policies have generally favored manual elections, but that rule was upended by the COVID-19 pandemic. During the onset of COVID-19, manual elections were halted completely and when elections resumed, they were conducted by mail-in ballot to ensure participant safety. As the pandemic wore on and more workers and employers alike learned how to safely return to the physical workplace, the Board issued its initial suggestions of how to safely conduct a manual election, signaling a desire to return to the status quo.…
On September 27, 2021, California Governor Gavin Newsom signed Senate Bill 646 (“SB 646”), which creates a limited exception from the Private Attorneys General Act of 2004 (“PAGA”) for certain janitorial employees performing work under a collective bargaining agreement (“CBA”). SB 646 will go into effect on January 1, 2022.
Continue Reading California Legislature and Governor Approves New PAGA Carve-Out
On January 1, 2021, various new and amended employment laws will go into effect in California. Below is a summary of some of these laws that employers should make themselves aware of heading into the new year. All laws discussed in this post go into effect on January 1, 2021, unless otherwise noted.
Continue Reading New Employment Laws to Look Out for in 2021
Last December, we addressed the National Labor Relations Board’s (NLRB or Board) new rules applicable to all NLRB-conducted elections. As then reported, these new rules partially reversed election rules implemented in 2014 and were designed to address many of the concerns raised by the Board’s 2014 rules changes. Specifically, the Trump Board has repeatedly expressed concern that the timeframe prior to a pre-election hearing was too truncated to allow the parties to adequately prepare for hearing and meet their many regulatory obligations. Originally scheduled to take effect April 16, 2020, implementation was later postponed and rescheduled to take effect on May 31. …
Continue Reading The NLRB Reacts to Court’s Eleventh-Hour Partial Injunction of the Agency’s New Election Rules
On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access to their employer’s e-mail system have a right to use that e-mail system during non-working time for union organizing and other activities protected under Section 7 of the National Labor Relations Act (“Act”). The decision in Purple Communications overruled the standard set out in the Board’s 2007 Register Guard decision, where the Board held that employers may lawfully impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity.
Continue Reading National Labor Relations Board Signals That It May Leave Purple Communications Black and Blue
On June 6, 2018, the National Labor Relations Board’s (“NLRB” or “Board”) General Counsel issued Memorandum GC 18-04 (“GC 18-04”), which provides guidance to employers on the legality of certain handbook rules following the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). By way of background, in 2004, the Board issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) if employees would “reasonably construe” the rule to prohibit protected concerted activity under Section 7 of the NLRA. The Lutheran Heritage test gave no consideration to the employer’s stated justifications for implementing the rule, and produced arbitrary and oftentimes nonsensical Board decisions that appeared to hinge on what the then-Board majority believed an employee may think about a particular rule. In Boeing, the Board overruled the “reasonably construe” standard announced in Lutheran Heritage and issued a new test that balanced the impact a reasonably interpreted, facially neutral rule may have on employees’ Section 7 rights with the employer’s business justifications for the rule. The Board noted that work rules will likely fall into three categories: Category 1 rules, which will include rules that the Board deems to be facially lawful; Category 2 rules, which will require individualized scrutiny to determine if the rules are lawful; and Category 3 rules, which will be rules designated by the Board as unlawful. A more detailed discussion of the Boeing case is available here.
Continue Reading National Labor Relations Board’s General Counsel Releases Memorandum Providing Guidance On Handbook Rules After Its December 2017 Boeing Decision
An employer violated employee’s labor rights by offering her a separation agreement that contained unlawful terms ruled a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) in Baylor Univ. Med. Ctr., Case No. 16-CA-195335 (Fort Worth, TX, February 12, 2018) (“Baylor”).
This decision is one of the first ALJ rulings to apply the NLRB’s new standard for addressing the legality of facially neutral work rules applicable to union and non-union workplaces under The Boeing Company, 365 NLRB No. 154 (December 14, 2017) (“Boeing”). In Boeing, the new Republican NLRB majority overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”) and announced a new standard it will follow when it evaluates a work rule that, when reasonably interpreted, could potentially interfere with union and other protected concerted activity under Section 7 of the NLRA (Section 7 conduct). Notwithstanding the new, more pro-business Boeing standard, the ALJ found that Baylor violated federal labor law when it offered a terminated employee $10,000 in exchange for signing a severance agreement and general release that included two unlawful provisions. The severance provisions at issue in the case were:…
Continue Reading Considering Offering Severance Pay in Exchange for Certain Post-Employment Obligations? Think Again.
On the eve of Chairman Phillip Miscimarra’s departure from the NLRB, he gave one final gift to employers: the overturning of Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), an Obama-Era Board decision that allowed unions to organize “micro-units” of employees—drastically limiting any challenges employers could have to a petitioned-for unit before being forced to negotiate with fractured units of employees throughout its workforce. In PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the Board reinstated the traditional community of interest standard to be used when determining whether unions have included all necessary employees on a petition for union representation. The Board’s reversal is a welcomed relief to employers who have been forced to bargain with several small units of employees in one workplace, thereby preventing all employees at a worksite from exercising their rights to vote on union representation.
Continue Reading The End of Union-Dictated Micro-Units: NLRB Overturns Specialty Healthcare
In 2004, the National Labor Relations Board (NLRB) issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”), and held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees would reasonably construe the rule to prohibit union and other protected concerted activity (Section 7 conduct). For the purposes of this analysis, a neutral work rule is one that does not explicitly reference or restrict Section 7 conduct. In the ensuing years, primarily during the Obama administration, the Board relied on Lutheran Heritage’s “reasonably construe” standard to invalidate countless neutral work rules to the point that practically every employer in America was placed at risk of being found to be in violation of the NLRA by virtue of the wording found in their employment agreements, employee handbooks and work rules.
Continue Reading Striking A New Balance – The NLRB Abandons the Lutheran Heritage Test and Devises a New Standard for Assessing the Facial Validity of Neutral Work Rules
The NLRB announced yesterday, a Request for Information (“RFI”) on the Board’s 2014 “Quickie Election” representation regulations (at 29 CFR parts 101 and 102). The RFI seeks input on the amendments to representation case procedures, which drastically changed the process for NLRB conducted elections in which employees vote on whether they want to be represented by a union. The RFI was approved by Board Chairman Philip A. Miscimarra and Board Members Marvin E. Kaplan and William J. Emanuel. Board Members Mark Gaston Pearce and Lauren McFerran dissented.
Continue Reading New Labor Board May Kill “Quickie Election” Rule; Requests Public RFI