On August 31, 2023, the National Labor Relations Board (“NLRB” or “Board”) adopted a broader test for what is considered “protected concerted activity” under the National Labor Relations Act (“NLRA” or the “Act”). Section 7 of the NLRA protects employees’ right to engage in concerted activities for the purpose of mutual aid or protection, otherwise known as “protected concerted activity” or “PCA.” Whether an employee’s conduct qualifies as “concerted” depends on whether their activity is linked to those of other employees. On the other hand, whether the employee’s activity is for “mutual aid or protection” focuses on whether the employee(s) involved are seeking to improve their conditions of employment. This standard applies to union and union-free settings.
Amanda Beckwith is an associate in the Labor and Employment Practice Group in the firm's San Francisco office.
The California Court of Appeal in Meda v. AutoZone, Inc. recently reversed a trial court’s finding that an employer demonstrated it “provided” seats to its employees as a matter of law under California’s suitable seating requirement. This rule stems from subdivision 14(A) of the Wage Orders, which provides that California employers must provide suitable seats to employees “when the nature of the work reasonably permits the use of seats.” In Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016), the California Supreme Court set forth the fact-intensive framework and multiple factors in analyzing whether the “nature of the work reasonably permits the use of seat,” triggering the employer’s obligation to provide suitable seats. However, no published California authority had considered what steps employers must take to “provide” seats under subdivision 14(A).…
Under well-settled, decades-old precedent, employers have historically been free to hold mandatory “captive audience” meetings to educate employees, share views on unionization, and discuss what employees’ rights are with respect to the same. However, on April 7, 2022, the NLRB General Counsel (“GC”) issued a memorandum stating her intent to ask the National Labor Relations Board (“Board”) to reconsider this rule, and overturn 75 years of precedent allowing an employer to hold “captive audience” meetings. Notwithstanding the plain wording of Section 8(c) of the NLRA, the GC takes the position that such mandatory meetings are inconsistent with employees’ rights under the NLRA. According to the GC, “captive audience” meetings chill employees’ Section 7 rights to refrain from listening to employer speech regarding unionization. She argues that employers typically use threats to coerce employees to attend mandatory meetings, and therefore these meetings fall outside the scope of statutory and constitutional free speech protections. Instead, she will urge the Board to require that an employer must make clear to employees that their attendance at these meetings is truly voluntary. While this memorandum does not change current law, it signals the GC’s intent to bring unfair labor practice charges against an employer for holding “captive audience” meetings in order to bring the issue before the Board.
Continue Reading NLRB General Counsel Will Ask the Board to Find That Captive Audience Meetings Violate the NLRA
The National Labor Relations Board (Board or NLRB) could reverse a 2019 decision holding that honest, albeit mistaken, classification decisions and announcements to employees do not violate the National Labor Relations Act (the NLRA). On March 17, 2022, General Counsel of the NLRB issued a Complaint against Deco Logistics, Inc. d/b/a Container Connection and its affiliates (collectively Deco Logistics), alleging that Deco Logistics violated the NLRA by misclassifying drivers as independent contractors as well as other conduct that allegedly violated the workers’ Section 7 rights to organize, such as interrogating a driver about union activities and retaliating against drivers for assisting the union’s organizing campaign. The Complaint seeks an affirmative order that Deco Logistics reclassify its independent contractors as employees, and compensation for any harm the workers incurred as a result of the misclassification as independent contractors.
Continue Reading NLRB to Decide Whether Misclassification Is Standalone Violation of the NLRA
Washington D.C. may become the next local government to require that restaurants pay minimum wage to its servers, bartenders, and any other workers who currently earn a “tipped wage” – a lower base wage, plus tips. Presently, that base wage is $3.33 per hour.
Continue Reading D.C. Voters Will Decide Whether to Eliminate Tipped Restaurant Wages