On March 7, 2023, the National Labor Relations Board (NLRB) announced a new information sharing agreement with the Consumer Financial Protection Bureau (CFPB). The agencies executed a memorandum of understanding that will remain in effect indefinitely and permit the sharing of nonpublic information, including information about ongoing investigations. According to the NLRB and CFPB, the agreement will help improve the enforcement of both federal consumer financial protection laws and labor laws, with a heightened focus on employer surveillance and employer-driven debt.
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.
The decision of the National Labor Relations Board (the Board) in McLaren Macomb, 372 NLRB No. 58 ( Feb. 21, 2023), reinstates a limit on the confidentiality, non-disclosure, and non-disparagement clauses that employers may include in severance agreements with most of their lower-level employees. While the Board bills its decision as a return to the standard applied in earlier cases, this decision suggests that the Board will take a broader view of how such agreements infringe on employees’ rights under Section 7 of the National Labor Relations Act.
On February 13, 2022, the National Labor Relations Board (NLRB) held that Starbucks violated federal labor law at multiple locations in Philadelphia in 2019 and 2020. The decision, issued by the NLRB’s three Democrats, found that Starbucks unlawfully threatened, surveilled, and interrogated employees, prohibited discussion of terms and conditions of employment, reduced the work hours of union supporters, and ultimately terminated two employees for engaging in protected activity.
2023 saw more people engaged with in-person, positive community as COVID-19 infections and serious cases declined. Yet, last year in our state was also marked with difficult impacts of politics, social media, the economy, divergent weather, wildfires and water scarcity. And, almost as sure as the sun rises each day, regulation of California employers increased too. More than 580 bills introduced in the last California legislative session mention “employer,” compared to about 330 bills in 2021.
While most bills did not pass the legislature, many were signed into law by Gov. Gavin Newsom, bringing more rules and risks for employers dealing with workplace safety, privacy, leaves of absence, anti-discrimination, wages, benefits and working conditions.
Last week, the National Labor Relations Board (NLRB) continued its efforts to effectuate a strong national labor policy focused on advancing the organizational rights of workers and encouraging collective bargaining. Three recent decisions take aim at enhancing available remedies in unfair labor practice cases and facilitating organizing among smaller bargaining units.