At the end of last year, Congressional appropriators gifted a $25 million budget increase to the National Labor Relations Board. While this boost in funding fell short of President Biden and General Counsel Jennifer Abruzzo’s requests, this cash infusion should give the Board and its Regions the ability to further the General Counsel’s agenda. With the Regions having additional resources to investigate and prosecute cases, and with the Board primed to engage in significant rulemaking, we expect to see a host of changes to labor law in 2023, some of which we outline below
The End of All-Hands Meetings?
At the top of the General Counsel’s wish list is an end to “captive audience” meetings, which she has argued are “inherently coercive.” Indeed, in several interviews and post-hearing briefs, Ms. Abruzzo has expressed her view that employers should not have the right to conduct mandatory all-hands meetings where management officials relay factual information, as well as their opinions, to attempt to lawfully persuade employees to vote against unionization.
An Expected Change to the Joint Employer Standard… Again
In early September, 2022, the Board issued a notice of proposed rulemaking, wherein it proposed to once again upend its joint-employer jurisprudence. Under the proposed rule, which we expect the Board to approve in the next few months, a business that contracts with another business for services may be considered a joint employer where it maintains indirect or reserved control over the contracted “employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. This expected expansion of the joint employer standard could inject uncertainty into typical contracting relationships – like a warehousing employer hiring a sanitation service – at the same point in time that employers are facing a potential recession.
Increased Scrutiny of An Employer’s Neutral Work Rules
In early January, 2022, the Board invited briefing from parties and amici regarding whether it should revisit its framework for determining whether an employer work rule violates the National Labor Relations Act. Ultimately, we expect this “new” framework to look a lot like the Board’s previous Lutheran-Heritage standard, whereby the maintenance of a facially-neutral work rule will violate the Act if employees would reasonably construe the rule to prohibit union and other protected concerted activity. This restrictive analysis was difficult for employers to apply and led to inconsistent results. For example, a workplace civility requirement might be found lawful, where as a workplace prohibition on disparaging communications might not. Employers would do well to closely follow these developments, and may want to consider reviewing their current policies and rules to ensure they pass muster under this more restrictive analysis.
Weingarten Rights in a Non-Union Workplace
As we previewed in our companion blog post summarizing the Board’s big 2022 decisions, we anticipate that the General Counsel will argue that Weingarten rights – the right of a union-represented employee to a witness during an investigatory interview that may lead to discipline – should also apply in non-unionized workplaces. To the extent the Board agrees with the General Counsel, employers could be forced to grant an employee’s request for a witness during an interview conducted in the course of a confidential investigation. Not only would such a witness compromise the confidentiality of the proceedings, but breaking confidentiality could also cause the employer to run afoul of other nondiscrimination statutes.
Prepare for More 10(j) Injunction Actions
In late October, 2022, the General Counsel instructed Regions to pursue “full interim relief” when seeking injunctive relief under Section 10(j) of the Act. Pursuant to Memorandum GC 23-01, Regions should first attempt to settle the entire case. Failing that, Regions should offer the employer the “opportunity to voluntarily agree to an interim settlement that includes remedies, such as reinstating alleged discriminatees or agreeing to bargain” while the underlying charge is litigated before the Board or an ALJ.
This framework may not be palatable to most employers, as it would appear to require them to concede that an action was unlawful before the conduct is actually ruled upon. As an example, should an employer lawfully discharge employees during an organizing campaign, the employer would have to bring those employees back to work to avoid defending an injunction action while simultaneously defending the terminations before the Board or the ALJ. Stated another way, to avoid injunction proceedings, the employer would be forced to bring employees who it lawfully discharged back to work, only to potentially secure a decision from the Board that the terminations were lawful.
Increased Scrutiny of Typical Employee Monitoring Technology
Also in late October 2022, the General Counsel issued Memorandum GC 23-02, wherein she announced her intention to “protect employees” from what she describes as “intrusive or abusive” and “omnipresent” electronic monitoring and algorithmic-driven management practices that might interfere with employees’ Section 7 rights under the National Labor Relations Act. To accomplish this goal, the GC proposed an amorphous burden-shifting “framework” where an employer will be found to have presumptively violated the Act where its “surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee in engaging in activity protected by the Act.” In defense, the employer would be forced to establish that the practice at issue is narrowly tailored to address a legitimate business need or, in the words of the General Counsel, “that its need cannot be met through means less damaging to employee rights.”
Ultimately, this proposed framework appears to place the onus on employers to justify their use of routine workforce management technology, such as monitoring employee work rates, using surveillance cameras as a loss prevention tool, or using GPS tracking devices and cameras to monitor drivers.
So What Now?
Given the Board’s Democratic majority and the General Counsel’s stated priorities, employers should consider preparing for these and other employee-friendly changes to labor law by, among other things: 1) reviewing and revising policies and rules; 2) considering the extent of their use of third-party vendors; and 3) watching for important Board decisions. The pendulum has well and truly swung back from the more employer-friendly Trump Board days. Keep an eye on the blog for more information.