Recently confirmed National Labor Relations Board General Counsel Jennifer Abruzzo issued a memo this week outlining several federal labor law and policy issue areas that she expects to target during her tenure at the Board. Her memo offers a preview of what employers can expect over the next three years from the Office of General Counsel and the new Democratic majority at the Board.
Abruzzo highlighted more than 40 Trump-era decisions for possible reconsideration and rescission, signaling that undoing much of the previous Board’s work of the last four years is the main priority. Abruzzo’s views are quite important, as the Board’s General Counsel has sole authority to decide which cases to prosecute, which issues and cases to bring before the Board, and how such cases are argued before the Board. Accordingly, Abruzzo has significant power to effect substantial change to federal labor law and policy. Exercising such authority, Abruzzo may still be challenged on the theory that former General Counsel Peter Robb was unlawfully terminated and that his term continues through November 16, 2021.
Issue areas highlighted by Abruzzo as targets for changes in law and policy include:
- Employer handbook rules and workplace rules and policies. The Trump-era Board departed from the Obama Board and created a new framework for evaluating the legality of an employer’s workplace rules and policies – the Boeing framework – that accounted for an employer’s right to maintain discipline and a productive workplace. Abruzzo and the current Board will likely seek to revert to standards created under the Obama Board that will place increased scrutiny on employer workplace rules and policies that allegedly “chill” worker rights under the NLRA and therefore are presumed to be unlawful.
- Employee status. The Trump-era Board, in cases such as SuperShuttle DFW, Inc. 367 NLRB No. 75 (2019) and Velox Express, Inc., 368 NLRB No. 61 (2017), clarified employer rights to classify workers as independent contractors under the NLRA. Abruzzo and the Board will likely significantly restrict independent contractor status and target employers for NLRA violations for alleged worker misclassification.
- Definition of concerted activity. Abruzzo and the Board will likely use new cases to expand the range of employee activity and conduct that is protected under the NLRA against employer retaliation. This could have a considerable impact in several areas, including employee use of employer email systems for organizing purposes, employee strikes or protests for political reasons, and employers’ ability to discipline employees for the use of highly offensive language, among other areas.
- Union access to employer property. The Trump-era Board, in cases such as UPMC 368 NLRB No. 2 (2019) allowed employers to restrict union access to employer private property provided an employer’s access policy was enforced on a nondiscriminatory basis. Abruzzo and the new Board will likely significantly expand union access to employer private property, empowering unions to use such property for organizing purposes, including strike activity.
- Confidentiality agreements. Abruzzo and the Board will likely attempt to overturn Trump-era precedent such as Apogee Retail 368 NLRB No. 144 (2019) and apply heightened scrutiny to employer-employee confidentiality agreements applicable to both workplace investigations and separation agreements.
The above is only a sample of the numerous labor law issues highlighted by Abruzzo in her memo as priorities for change. Other areas include: an employer’s duty to recognize and/or bargain with a union, union dues obligations, and the scope of mandatory subjects of bargaining.
Outlook: Abruzzo’s memo signals more clearly than ever that there is a new sheriff in town. Abruzzo’s memo serves as proof that the Biden Board will hit the ground running with labor law and policy changes. Employers can expect a serious uptick in NLRB regulatory activity beginning in the fall, and, over the next few years, potentially face several NRLB decisions creating new employer-unfriendly precedent. Employers should conduct thorough reviews of their policies to ensure compliance with the NLRA and put in place training and education programs for their workforce regarding the requirements of the NLRA.