National Labor Relations Board

NLRB Issues Final Rule Expanding Joint Employer Status

November 6, 2023

By Kali R. Schreiner

On October 27, 2023, the National Labor Relations Board (NLRB) issued a final rule that vastly expands the definition of joint employment under the National Labor Relations Act (NLRA). As we reported previously, this new rule rescinds and replaces the 2020 focus on “direct and immediate control” with a less-demanding standard intended to expressly ground the joint-employer rule in common-law agency principles.

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NLRB Further Erodes Employer Rights and Promotes Unionization

September 1, 2023

By Raymond J. Pascucci and Thomas G. Eron

The National Labor Relations Board (NLRB) continues to drastically change the law and tilt the playing field against employers and in favor of labor unions. Last week, the Biden NLRB issued new rules governing the unionization process that mark a return to the “quickie elections” from the Obama era. This week the NLRB issued a landmark decision in Cemex Construction Materials Pacific (372 NLRB No. 130) that seriously undermines both employer and employee rights by disfavoring secret ballot elections.

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NLRB Restores Expedited Union Election Procedures

August 31, 2023

By Nicholas P. Jacobson

On Aug. 25, 2023, the National Labor Relations Board (NLRB) published a final rule regarding election proceedings. In issuing the rule, the NLRB reinstated election procedures it issued in 2014. These procedures shorten the union election and certification processes and reinstate what have been termed “ambush” elections. In 2019 the NLRB issued a rule replacing many of the provisions of the 2014 rule, but several of the provisions of the 2019 rule were invalidated in AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023). The NLRB’s latest rule rescinded additional provisions of the 2019 rule. Specifically, the NLRB’s new rule implements the following:

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NLRB Adopts New Legal Standard for Evaluating Employer Work Rules

August 8, 2023

By Pamela S. Silverblatt and Gianelle M. Duby

On August 2, 2023, the National Labor Relations Board (NLRB or Board) issued its decision in Stericycle, Inc., 372 NLRB No. 113 (2023), where it adopted a new legal standard to determine whether an employers’ work rules violate Section 8(a)(1) of the National Labor Relations Act (NLRA). The Board’s decision overrules existing precedent and establishes a more stringent test that is likely to render some existing work rules facially unlawful.

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Conflicting NLRB Stances Create Employer Compliance Plight

July 28, 2023

By Alice B. Stock

The following article by Bond attorney Alice Stock was published by Law360

Can an employer give employees a wage increase or benefits improvement during a union organizing campaign or while negotiating a first collective bargaining agreement after a union has won an election? At present, in most situations, it will be unlawful for an employer to do so.

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The National Labor Relations Board: The Show Must Go On, But With a New Independent Contractor Test

June 20, 2023

By Paul J. Buehler III

On June 13, 2023, the National Labor Relations Board (the Board), in its decision in the Atlanta Opera, Inc,[1] brought back for an encore, its 2014 FedEx II[2] standard for determining independent contractor status under the National Labor Relations Act (the Act). In doing so, the Board overruled and closed the curtains on its 2019 SuperShuttle[3] decision, bringing back a pro-employee standard for determining whether workers are employees covered under the Act or independent contractors not subject to the Act’s protections.

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NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity

June 2, 2023

By Hannah K. Redmond and Jacqueline E. Zahn

In a recent decision, the National Labor Relations Board (the Board) returned to its earlier precedent “applying setting-specific standards” in cases involving employees who are disciplined for misconduct that occurs during activity otherwise protected by the National Labor Relations Act (NLRA). The Board announced its return to the “traditional standards” earlier this month in Lion Elastomers LCC II.[1]

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NLRB General Counsel Issues Sweeping Challenge to Non-Compete Agreements

June 1, 2023

By Thomas G. Eron and Pamela S. Silverblatt

On May 30, 2023 the National Labor Relations Board (NLRB or the Board) General Counsel issued a memorandum advancing the position that non-compete agreements between employers and employees, which limit employees from accepting certain jobs at the end of their employment, interfere with employees’ rights under Section 7 of the National Labor Relations Act (the Act). The memo, which is the latest pronouncement in an aggressive agenda to curtail established management practices, and expand the reach of the Act, directs the NLRB’s regional staff to begin enforcement of this novel, expansive interpretation of the law.

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NLRB General Counsel Releases Guidance on Board’s McLaren Macomb Decision

April 4, 2023

By Gianelle M. Duby

On Feb. 21, 2023, the National Labor Relations Board (the Board) ruled in McLaren Macomb, 372 NLRB No. 58, that the mere proffer of a draft severance agreement containing broad confidentiality and non-disparagement provisions violated the National Labor Relations Act (NLRA). You can read our prior blog post outlining the details of the Board’s decision here.

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The NLRB’s Latest Decision Restricts the Use of Broad Confidentiality and Nondisparagement Clauses in Severance Agreements

March 7, 2023

By Peter A. Jones and Gianelle M. Duby

On Feb. 21, 2023, the National Labor Relations Board (NLRB or Board) issued its decision in McLaren Macomb, 372 NLRB No. 58 (2023), where it held that severance agreements with broad confidentiality and/or nondisparagement provisions impermissibly chill and restrain employees’ exercise of rights protected by Section 7 of the National Labor Relations Act (NLRA). The decision applies in both union and non-union workplaces. The decision is significant in that it overruled prior Board precedent and signals the Board’s unwillingness to enforce or otherwise accept severance agreements, or key provisions of those agreements, that bind signatory employees’ confidentiality and nondisparagement obligations that the Board considers to be too broad. The Board’s decision would not apply to supervisors, managers, or individuals not otherwise subject to Section 7 of the NLRA.

Read More >> The NLRB’s Latest Decision Restricts the Use of Broad Confidentiality and Nondisparagement Clauses in Severance Agreements

NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

December 20, 2022

By Peter A. Jones, Thomas G. Eron, and Richard J. Evrard

The National Labor Relations Board (NLRB) General Counsel has issued a complaint against the University of Southern California (USC), the Pac-12 Conference and the NCAA claiming that certain USC student-athletes are employees under the National Labor Relations Act (NLRA), and that the conference and the NCAA, along with the university, can be held jointly responsible employers for the treatment of those students under the law. This NLRB litigation portends fundamental consequences for private college and university athletic programs.

Read More >> NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable