Matthew A. Fontana, Ryan Funk, Sarah C. Blackadar, Jillian S. B. Lukacik, Author at Laborsphere

NLRB Withdraws Appeal of Joint Employer Rule Decision

Now that the NLRB has withdrawn its bid to keep the 2023 rule alive, what does this mean for employers? Likely, the NLRB is already looking at alternative methods to implement a similar standard either through new rule making or adjudications. In the interim, the standard now reverts to the 2020 rule, which requires an entity to actually exercise direct and immediate control over the terms and conditions of employment for a group of employees in order to be considered a joint employer.

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Key Takeaways From the 28th Annual Bernard Gottfried Labor Law Symposium

On October 19, 2023, Faegre Drinker Partner Ryan Funk gave remarks at the 28^th Annual Bernard Gottfried Labor Law Symposium, which was sponsored by the National Labor Relations Board, the Wayne State Law School, and the State Bar of Michigan. In his remarks, Funk critiqued three recent changes to the National Labor Relations Board’s remedial scheme.

Thryv, Inc.

Discussing Thryv, Inc., Funk voiced his concern that the labor law community was growing out of touch with workers, employers, and the public, and changing remedies in ways that hurt the overall mission of the agency.

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The New Critical Importance of a Union Request for Recognition

What does it mean if a union makes a “demand for recognition,” or “request for voluntary recognition” to an employer? What does a union mean when it says it has a “showing of interest” or “proof of majority support” or “majority status,” or that it has been “designated as Section 9(a) representative by the majority of employees in an appropriate unit”?

These magic words are now of critical importance to employers and their employees due to a dramatic change the National Labor Relations Board (NLRB) announced on August 25, 2023, in how it interprets the National Labor Relations Act (NLRA).

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NLRB GC’s Latest Guidance Expands Restrictions to Noncompete Provisions

The General Counsel of the National Labor Relations Board (the Board) issued new guidance announcing her position that certain noncompete agreements violate the National Labor Relations Act. Citing McLaren Macomb, the General Counsel urged the Board to adopt her position regarding noncompete agreements, arguing that the Board already embraced a similarly restrictive standard for analyzing the lawfulness of severance agreements.

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Michigan Repeals ‘Right-to-Work’ Law

Michigan Gov. Gretchen Whitmer repealed the state’s “right-to-work” law on March 24, 2023. Additionally, the new law bans Michigan localities from enacting their own ordinances which would “prohibit or limit an agreement that requires all bargaining unit employees, as a condition of continued employment, to pay to the labor organization membership dues or service fees.”

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NLRB General Counsel Issues Guidance on Severance Agreement Restrictions

On March 22, 2023, the General Counsel of the National Labor Relations Board (NLRB or the Board), Jennifer Abruzzo, issued guidance about the Board’s McLaren Macomb decision from earlier this year. The guidance made clear that the General Counsel will, when given the opportunity, prosecute a case before the Board to have the NLRB invalidate provisions in severance agreements that attempt to restrict the rights of departing employees to engage in activity protected by the National Labor Relations Act (NLRA). The General Counsel also emphasized her view of the retroactive application of the decision, noting that employers attempting to enforce old severance agreements will face new unfair labor practice liability even if the statute of limitations has run since the execution of the now-unlawful agreement. Although the General Counsel’s memorandum is not law, employers should pay close attention as the guidance indicates the position the General Counsel will take in prosecuting allegedly unlawful severance agreements.

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