On October 26, 2023, the National Labor Relations Board (“NLRB”) issued its long-awaited final rule on “joint employer” status under the National Labor Relations Act (“NLRA”). The new rule significantly expands the NLRB’s joint-employer doctrine, which will have adverse effects on many common business arrangements, including the use of temporary employees, subcontracting, and franchisee-franchisor relationships. The new rule is effective on December 26, 2023, and applies only to cases filed after that date. As explained herein, the new rule expands the definition of a joint employer in several key respects.
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On December 16, 2022, the National Labor Relations Board issued a decision in the case of Bexar County Performing Arts Center which restricts the right of property owners to restrict the right of employees who work on the property to engage in protest activity that is protected by the federal labor laws. The Board held in that case that a San Antonio, Texas performing arts venue did not have the right to evict employees of a symphony who distributed leaflets at the site protesting its decision to use recorded music instead of live musicians for a production of a classical music production, which stated that the patrons paid for and deserved to “DEMAND LIVE MUSIC!” The site owner had prohibited the symphony’s employees from distributing leaflets anywhere on its property.
In a December 13, 2022 ruling involving employer Thryv, Inc., the National Labor Relations Board’s (NLRB) panel embraced a concept asserted by the NLRB’s prosecutorial arm which expands available remedies for employees claiming they are victims of discrimination and retaliation. By making available consequential damages for actual and foreseeable harm resulting from conduct alleged to be unlawful, the NLRB is looking beyond mere out of pocket loss.
In a recent article, the National Labor Relations Board (“NLRB”) reported that during the first six months of 2022, union representation petitions filed at the NLRB increased 58%—up to 1,892 from 1,197 during the first half of 2021. (https://www.nlrb.gov/news-outreach/news-story/correction-first-three-quarters-union-election-petitions-up-58-exceeding). The NLRB also reported that in 2021, 52% of petitions filed resulted in a victory for the union as compared to only 46% in 2020. (https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/intake/representation-petitions-rc).
With a new Administration, comes a new approach on how labor law should be enforced. The National Labor Relations General Counsel Jennifer Abruzzo released General Counsel Memorandum 21-04 “Mandatory Submissions to Advice” on August 12, 2021. Abruzzo’s Memo indicates changes to come with respect to evaluating whether an employer rule violates employees’ Section 7 rights.
For the first time in years the NLRB’s five-member Board, which decides cases and enacts regulations, has a Democratic majority. The Board will decide cases as presented. It is expected that case rulings will revise legal standards applicable to the workplace and reverse decisions from the previous Administration and the previous Republican majority on the Board.
As you know I sit as a legislative appointee to the California Committee on the Employment of Persons with Disabilities (CCEPD) and am newly appointed to and elected chair of the inaugural panel of the IACA Standing Committee for People with Disabilities authorized by the Legislature to develop standards for individuals with Disabilities in apprenticeship, with a focus on non-construction industries. In the course of my service I have worked directly with the Agency leaders of the California Future of Work Commission which has just released its initial report.
President Biden Names Peter Ohr Acting General Counsel of the NLRB
Following the unprecedented firing of National Labor Relations Board (“NLRB”) General Counsel (“GC”), Peter Robb, on January 25, 2021, President Biden designated Peter Sung Ohr (“Ohr”) to serve as Acting GC of the NLRB. Ohr, a career-long employee of the NLRB, began his career in the NLRB Honolulu Sub-regional Office as a Field Attorney, and in 2011, was appointed Regional Director of the NLRB’s Chicago Regional Office. As Acting GC, Ohr’s term is limited to forty days.
Before taking office President Biden identified former Boston Mayor and Building Trades official Martin Walsh as his nominee to serve as Secretary of Labor. Assuming the Senate confirms, the Secretary of Labor will carry significant weight on labor policy and enforcement involving issues including wage and hour, employee benefits, union and management reporting, workplace safety, and hot topic issues such as independent contractor misclassification.
While organized labor was dealt a major setback by the Supreme Court in Janus v. AFSCME, the landmark ruling does not impact the legality of union security clauses in the private sector. In Janus, the Supreme Court held that the state’s extraction of union dues from non-consenting public employees violates the First Amendment. The Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that state and local governments could lawfully require public employees to pay “agency fees” as a condition of continued employment. Agency fees are intended to cover costs related to contract negotiation, grievance processing, and contract administration, but are meant to exclude costs related to union lobbying and political activism. Following Janus, public employees can no longer be compelled to contribute any dues to unions, including so-called agency fees.
Other AALRR Blogs
- National Labor Relations Board Adopts Expansive Test for “Joint-Employer” Status
- NLRB Ruling Curbing Right of Property Owners to Control Contractors’ Employees Warrants Careful Attention
- NLRB Adds Compensatory Damages to Its Scope of Remedies
- Widespread Efforts to Organize Require Employer Preparation
- How to Ensure Your Employee Handbook Does Not Infringe on Union Rights
- Changes at NLRB forecast major challenges ahead for employers and expansion of rights for employees and labor unions
- The Future of Work (And Workforce Enforcement)
- NLRB Policy Shakeup: President Biden’s Notable Changes at the NLRB Could Signal a Change in Board Policy for Years to Come
- Labor Law Change Coming Soon in Biden Administration
- Private-Sector Employers Unaffected by the Supreme Court’s Janus Decision on Union Dues