Artificial Intelligence Briefing: FTC to Address Commercial Surveillance and Data Security

National Labor Relations Board and Federal Trade Commission execute Memorandum of Understanding to promote fair competition and advance workers’ rights.

On July 19, 2022, the NLRB and FTC formalized a partnership between the agencies that, among other things, will seek to protect worker rights from algorithmic decision-making. This is the most high-profile instance of the NLRB identifying algorithmic decision-making as something that could impact employee rights protected by the National Labor Relations Act. Employers with organized workforces (or workforces that could be the target of union organizing) should be aware of this development and the NLRB’s growing cooperation with the FTC.

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NLRB General Counsel Seeks to Increase Remedies in Refusal to Bargain Cases

On June 28, 2022, Jennifer Abruzzo, the General Counsel for the National Labor Relations Board (NLRB or the Board), announced via Twitter that she petitioned the Board to adopt a compensatory make-whole remedy in refusal to bargain cases. In August 2021, Abruzzo issued an internal memorandum detailing potential changes she sought to effectuate during her tenure. The make-whole remedy, which was briefly mentioned in the General Counsel’s memorandum, would disincentivize employers from refusing to bargain with unions and is consistent with this administration’s policy goal of facilitating and increasing collective bargaining.

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Supreme Court Clarifies Transportation Worker Exception to Federal Arbitration Act

The Supreme Court unanimously held on June 6, 2022 that airline workers who load and unload cargo from airplanes are exempt from the coverage provided under the Federal Arbitration Act (FAA). Employers commonly use the FAA to compel arbitration where disputes arise under employment agreements containing arbitration provisions. However, Section 1 of the FAA exempts “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from the FAA’s coverage. According to the Supreme Court, workers who load and unload cargo onto airplanes fall within that exemption.

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Southwest Airlines Files Challenge to the Colorado Healthy Families and Workplaces Act

Southwest Airlines Co. has filed a complaint for declaratory judgment in the U.S. District Court for the District of Colorado challenging the application of the Colorado Healthy Families and Workplaces Act (HFWA) to its Colorado employees.

The complaint, which names Scott Moss in his capacity as the director of the Colorado Department of Labor and Employment’s Division of Labor and Statistics, along with Philip J. Weiser in his capacity as the attorney general of Colorado, alleges that the application of the HFWA to Southwest employees is preempted by the federal Airline Deregulation Act and the federal Railway Labor Act, and that it violates the Commerce Clause of the U.S. Constitution.

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Supreme Court Decides Viking River Cruises, Inc. v. Moriana

On June 15, 2022, the U.S. Supreme Court decided Viking River Cruises, Inc. v. Moriana, No. 20-1573, holding that the Federal Arbitration Act (FAA) preempts a rule of California law insofar as it precludes agreeing to arbitrate only an employee’s individual claims under California’s Labor Code Private Attorneys General Act (PAGA).

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Third Circuit Holds Arbitration Provisions Do Not Survive Expiration of CBA

On March 30, 2022, a panel in the Third Circuit Court of Appeals overruled nearly 30-year-old precedent and held that arbitration provisions do not survive the expiration of a collective bargaining agreement (CBA) in Pittsburgh Mailers Union Local 22 v. PG Publishing Co. The previous rule, first articulated in Luden’s Inc. v. Local No. 6 Union of the Bakery, Confectionary & Tobacco Workers International Union, 28 F.3d 347 (3d Cir. 1994), was premised on the idea that where an employer and a union agree to maintain certain terms and conditions of employment after the expiration of a CBA, a “new implied-in-fact-CBA” is formed that implicitly incorporates the expired CBA’s dispute resolution mechanisms. The only exceptions were situations where both parties intended the arbitration clause to expire with the contract or where one party, under the totality of the circumstances “objectively manifest[ed] to the other a particularized intent . . . to disavow or repudiate that term.” These exceptions were exceedingly narrow.

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