On September 30, 2024, Governor Gavin Newsom signed into law SB 399. Starting January 1, employers are officially banned from holding captive audience meetings—mandatory employer-sponsored meetings that discuss religious or political matters—which are a common and accepted defense against union organizing.Continue Reading Mandatory Captive Audience Meetings Are Banned in California in 2025
On August 15, 2024, the Appropriations Committee of the California State Assembly passed SB 399 by a vote of 10–3. The bill had passed the Senate in 2023 and has been with the Assembly since, waiting for action and a vote. Continue Reading California Assembly Committee Revives State’s Captive Audience Meeting Ban
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). Continue Reading NLRB General Counsel Announces Employee Non-Compete Agreements Violate the NLRA
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.Continue Reading Back to Normal, Almost – NLRB General Counsel Issues Updated Guidance on Suggested Manual Election Protocols and Push for Manual Elections by the NLRB
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
From time to time, employers trigger labor disputes when they make unilateral changes in working conditions. Unions objecting to such changes often complain to the NLRB, claiming a change to be mandatory bargaining subjects and that the employer’s change without prior bargaining violates the NLRA’s Sections 8(a)(5) and (d).
Continue Reading Why, How and When Katz May “Trump” an Expired CBA When It Comes to Making Unilateral Changes — The Relationship Between MV Transportation and Raytheon Network
In Apogee Retail, 368 NLRB No. 144 (2019), the NLRB overruled the Obama Board’s decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015) and held that investigative confidentiality rules that by their terms apply only to investigation participants and last only for the duration of an investigation are categorically lawful because the justifications for such rules are self evident and predictably outweigh the comparatively slight potential for such rules to interfere with the exercise of Section 7 rights. In this day and age of workplace harassment claims and internal investigations, Apogee was welcome news for employers because it ended the legal requirement that an employer prove that it had a particularized, legitimate and substantial business justification for compulsory confidentiality and because that said justification outweighed employee Section 7 rights in order for such prohibitions to be adjudged lawful.
Continue Reading Keep a Lid on It – The Trump NLRB Reaffirms Employer Ability to Enforce Investigative Confidentiality Rules
Setting clear and reasonable standards for taking access to an employer’s private property is high on the National Labor Relations Board’s agenda. Not only is the Board talking about issuing formal rules in this area, but the Agency is cranking out new access decisions left and right, the most recent being its recent decision in Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, dated September 6, 2019 (Kroger). The issue presented there was whether the National Labor Relations Act (NLRA or Act) requires an employer to grant nonemployee union representatives access to its premises to solicit the employer’s customers if it has also permitted other third parties to engage in civic, charitable or commercial solicitations there. The Board answered this question in the negative.
Continue Reading The NLRB Rules That Employers May Bar Union Representatives From Their Property Even Though They Have Allowed Other Third Parties To Engage In Civic, Charitable Or Commercial Solicitations There
A unionized employer must bargain with its employees’ union before making any unilateral changes in employees’ wages, hours, working conditions or other terms and conditions of employment. Such changes are commonly referred to as mandatory bargaining subjects. In Alan Ritchey, 359 NLRB 396 (2012) and later in Total Security Management, 364 NLRB No. 106 (2016), the Obama NLRB held that the discretionary discharge or suspension of a union employee was a mandatory bargaining subject — even when that discipline was carried out pursuant to an established company employment practice or policy. Therefore, according to these two controversial Obama Board decisions and absent a collective bargaining agreement provision covering the discipline or some other overriding extenuating circumstance, an employer breached its duty to bargain and violated Section 8(a)(5) of the Act when it discharged or suspended a worker without first notifying the worker’s union of the employer’s intention to discharge or suspend the employee and without first affording that union a reasonable opportunity to meet and bargain with the employer. However, a recent Trump Board decision, Oberthur Technologies, 368 NLRB No. 5, issued on June 17, signals a probable change in the Board’s governing case law on this issue.
Continue Reading NLRB Limits Duty to Bargain Over Disciplinary Actions
On June 14, 2019, the National Labor Relations Board (NLRB or Board) issued an important decision clarifying whether and when an employer may lawfully exclude union organizers from its privately owned public spaces. Under then extant Board caselaw, where an employer had invited the public to enter or use space on its private property, the employer could not lawfully exclude union organizers from entering and using that same “public space” because that exclusion was considered to be unlawful discrimination in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA or Act). The Board’s decision in UPMC, 368 NLRB No. 2, rejects this generalized “public area” doctrine, redefines what is and isn’t unlawful discrimination for the purposes of determining a union’s right of access to an employer’s public spaces and, broadens employer’s legal options under the NLRA.
Continue Reading NLRB Limits Union Access Rights to “Public Spaces” of Employers
In The Boeing Company, 365 NLRB No. 154 (2017), the National Labor Relations Board (NLRB) reassessed the standard it would apply when determining the facial validity of otherwise neutral work rules based upon a balancing between a given rule’s negative impact on employee’s ability to exercise their statutory rights and the rule’s connection to an employer’s right to maintain discipline and productivity in the workplace. For the purpose of applying this new balancing standard, the Boeing Board trifurcated all work rules into one of three distinct categories. First, a Category 1 rule is a work rule that does not prohibit or interfere with the exercise of statutory rights or one whose potential impact on statutory rights is relatively slight or outweighed by the business justification associated with the rule. According to Boeing, the maintenance of such rules is to be considered lawful. Next are Category 2 rules, which are neither “obviously” lawful nor unlawful and which may adversely impact NLRA-guaranteed rights. Under Boeing, their lawfulness is to be determined on a case-by-case basis and depends upon whether the rule’s adverse impact on statutory rights is outweighed by the employer’s interest in maintaining the rule. Finally, Category 3 rules are those that on their face prohibit or limit statutory rights and whose impact on statutory rights outweigh the business justifications associated with the rule. Category 3 rules are facially invalid, rendering their mere maintenance unlawful.
Continue Reading NLRB’s Division of Advice Gives “Advice” As to the Application of Boeing — When a Work Rule/Employment Agreement is Facially Valid Under the NLRA in Union and Union Free Workplaces