Labor Relations Law Blog

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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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.

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.

On February 25th, the National Labor Relations Board unanimously vacated its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined standards for establishing joint employer relationships. This action was taken after the NLRB’s Inspector General reported that Board member William Emanuel had a conflict of interest when he ruled on the case.

The National Labor Relations Board is considering modifying its case processing procedures in ways that could benefit employers, according to an internal NLRB memorandum obtained by the paid subscription service Bloomberg Law.