The employer-unfriendly selections from the Nationwide Labor Relations Board have been coming quick and livid. In honor of the vacation, this is a brief recap.
As you in all probability know, the five-member NLRB till final week had three Democrats, one Republican, and one emptiness. In different phrases, a Democratic majority.* And as one would anticipate, they have been overruling Trump-era selections proper and left.
*One Democrat, Gwynne Wilcox (D), left the Board when her time period expired this previous Sunday. However, earlier than she left, she joined within the selections I will be speaking about.
Earlier than I begin, I might like to offer an enormous hat tip to labor lawyer extraordinaire Tim Davis of our Kansas Metropolis and St. Louis workplaces, and to David Phippen of our Washington D.C.-Northern Virginia Workplace, additionally a bang-up labor lawyer who writes excellent bulletins that educate the remainder of us about what’s going on. Almost every part on this publish got here from Tim or David. (So when you do not prefer it, complain to them, not me. Heh.)
Right here is the place we stand now. The next is just not a complete record, nevertheless it gives you a (dangerous) style of what has gone on. I am going to proceed in chronological order.
Expanded treatments for unfair labor practices. The Nationwide Labor Relations Act authorizes the Board to award again pay and again advantages to an worker whose rights are violated. In December 2022, the NLRB expanded that to incorporate “all direct and foreseeable pecuniary harms” ensuing from the violation. Presumably this would come with issues like having to pay increased rates of interest to get a automotive mortgage due to a poor credit standing that resulted from an illegal discharge. The Board mentioned that “compensatory damages,” which would come with damages for emotional misery, and punitive damages are usually not recoverable. I assume that is one thing.
Teeny-tiny bargaining items. Additionally in December, the Board made it a lot simpler for unions to prevail on claims that “micro” bargaining items have been applicable. As David mentioned on the time, “The brand new commonplace will make it simpler for unions to acquire illustration elections in comparatively small bargaining items, growing the probability that the workforce may have piecemeal illustration and that employers could should discount with extra unions and take care of extra bargaining items, even inside a single worksite.”
Separation and (in all probability) settlement agreements. In February of this yr, the Board dominated that non-disparagement and confidentiality provisions in separation agreements with non-supervisory workers have been illegal as a result of they might have a chilling impact on the workers’ means to interact in protected concerted exercise. (Right here is my employment lawyer’s take on the ruling.) Because of this resolution, we really helpful that employers revamp the separation and settlement agreements used with non-supervisory* workers. Happily, the Board did make clear that it was nonetheless all proper for employers to require that the quantities paid below the agreements be saved confidential.
*With some exceptions, these Board rulings apply solely to workers who are usually not “supervisors” throughout the which means of the NLRA. It is crucial for employers to remember that, below the NLRA, “supervisor” is just not synonymous with “white-collar” or “overtime-exempt” or “extremely expert” or “particular person contributor.” You really should supervise workers to be a “supervisor” below the NLRA.
Misconduct that happens in reference to protected concerted exercise? Most likely protected! Within the outdated days (that may be, like, final March), an employer may take motion towards an worker who engaged in misconduct, even when that misconduct occurred in reference to protected concerted exercise. At the least, so long as the misconduct — not the protected exercise — was what motivated the employer. Properly, that is throughout. The Board in Could adopted a regular that’s way more indulgent towards misbehaving workers.
Quickie elections are again, child! Or they are going to be, beginning December 26. Merry Christmas. In Could, the NLRB issued laws offering for so-called “ambush,” or “quickie,” elections for union illustration. Will this grow to be virtually moot in gentle of what the Board did final week? (See “Elections? Fugeddaboutit,” under.)
Rewrite these worker handbooks! Simply final month, the NLRB determined that just about all employer insurance policies and guidelines have a chilling impact on workers’ rights to interact in protected concerted exercise. I am exaggerating, however not a lot. As David says,
Beneath the brand new commonplace, which the Board is making use of retroactively, any employer office rule that may (not “would”) fairly be interpreted by an worker as proscribing or interfering with any form of protected concerted exercise or different worker rights protected by the NLRA is presumptively illegal “interference.” That is so even when there exist extra cheap interpretations of the rule, and even when there is no such thing as a proof that the rule really brought about any “interference.”
(Emphasis in unique.)
Elections? Fugeddaboutit. Final week, the Board determined that an employer has solely 14 days to petition for an election if a union claims it has the assist of the vast majority of workers within the proposed bargaining unit. Even worse, if the employer is discovered to have dedicated an unfair labor apply, the Board can merely direct the employer to discount with the union with out even permitting the workers to vote on illustration. And guess who decides whether or not the employer dedicated a ULP? Why, the Board, in fact. As David and Tim wrote,
The choice’s obligatory course of and new commonplace create an elevated incentive for unions to pursue ULP allegations for any pre-election conduct by employers. That, in flip, may permit unions to halt elections that they concern they may lose for any purpose, together with lack of majority assist. In lots of instances, unions could imagine that they’ve higher probabilities with the Board majority – particularly the present Board – than with a majority of workers.
Are you fully depressed but? Listed here are three extra from this week. The Board
- Made it simpler for workers and unions to show that an worker appearing alone is actually participating in protected “concerted” exercise.
- Restricted employers’ rights to make unilateral adjustments to working situations when a labor contract has expired and is being renegotiated, even when the adjustments are in step with previous apply. (Right here and right here.)
You have to your three-day weekend to recover from this.
Picture Credit: From the mural “Detroit Business” by Diego Rivera, Detroit Institute of Arts.
