Tag: NLRA

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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Potential Changes to Labor Policy Under a Biden Administration

Employers should anticipate major changes to national labor policy when President-elect Joe Biden assumes the Oval Office. Through a combination of legislation and revisiting Trump-era NLRB decisions, the incoming administration will likely seek to increase union membership by facilitating organization, shortening election periods and reducing the bargaining period for the first collective bargaining agreement.

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NLRB Expands Employer Options for Social Media and Non-Disparagement Rules

With the COVID-19 emergency impacting employers’ operations and the way employees work, more and more employees may start taking to social media to vent their opinions about work and current events (sometimes intertwining the two). Employee social media expression can damage an organization’s brand and violate its social media and non-disparagement rules. Discipline for social media expression can run afoul of the National Labor Relations Act (NLRA), which provides certain protections for employee speech, including social media speech, so that employees often believe that anything goes in this forum. Fortunately for employers, the National Labor Relations Board (NLRB) recently clarified the types of employee social media activity employers may regulate, giving employers more latitude to discipline employees for social media conduct that violates employer rules and threatens the employer’s reputation.

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Political Strike Guidance for Employers: Preparing for ‘Strike for Black Lives’

On July 20, labor organizations across the country are planning a “Strike for Black Lives,” a national walkout in support of “dismantling racism and white supremacy to bring about fundamental changes in our society, economy and workplaces.” When preparing for this and any political strike, employers should develop a response strategy — grounded in NLRB interpretations of employees’ rights to conduct political demonstrations — to limit liability and keep their businesses running.

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Washington Governor Jay Inslee Launches a State-Level Epic Systems Backlash

On May 21, 2018, the U.S. Supreme Court issued its long-awaited opinion in Epic Systems Corporation v. Lewis, in which it held that arbitration agreements containing class action waivers were enforceable notwithstanding the National Labor Relations Act’s protection for employee “concerted activity.” The five-Justice majority opinion sparked a fiery dissent by Justice Ruth Bader Ginsburg, who focused on the opinion’s potential impact on wage and hour litigation, among other employee activities. In response, this week, Washington State’s Democratic Governor Jay Inslee issued a sweeping Executive Order seeking to discourage employers from implementing (or continuing to rely on) arbitration agreements with class action waivers. Although Governor Inslee’s action is the exception so far, it may signal a broader backlash to arbitration agreements with class action waivers in the employment context.

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