We previously wrote here that President Biden's nomination of union-side attorney Gwynne Wilcox to the National Labor Relations Board (NLRB) signaled a sharp turn to the left on policy matters and foreshadowed the revisitation of pro-employer decisions that would directly impact the labor-management relationship and how employers conduct their business. We are now beginning to see the shift take shape. On August 12, 2021, the NLRB's top attorney, General Counsel Jennifer Abruzzo, took the first steps in implementing this pro-labor shift with her recently issued memorandum projecting her agenda for reshaping labor policy and law (the Agenda). The Agenda indicates Abruzzo's intent to review and reverse recent—and some long-standing—employer-friendly legal precedents. See G.C. Memo. 21-04. Employers all need to be aware that we are rapidly approaching a new and different state of labor law under the current administration.
The Agenda mandates all NLRB regions to submit cases in multitudinous areas to the General Counsel Office's Division of Advice for "centralized consideration." Many of Abruzzo's Agenda items serve to bolster the policy ideas contained in the Protect the Right to Organize Act (PRO Act), which our colleagues previously wrote about here. Of particular importance to Abruzzo's office is the unmistakable intention to revert to a more pro-labor legal precedent that had been overruled by the NLRB during the Trump administration. The Agenda makes clear that this administration will aggressively enforce the National Labor Relations Act (NLRA) with a more pro-labor viewpoint.
If Abruzzo achieves her Agenda goals of reversing the "doctrinal shifts" in precedent that occurred under the previous administration, employers, with and without unionized workforces, could feel the impact from the following labor law and policy changes in the near future.
- Expanding monetary damages for which employers may be liable when they unlawfully terminate workers. Currently, the NLRB awards "make whole" remedies to aggrieved employees in the form of back-pay damages and reinstatement. Abruzzo's Agenda suggests the "make whole" relief standard may be expanded to include broader relief, including consequential damages for terminated employees, such as interest fees from unpaid credit card bills or medical costs incurred because of loss of health insurance. Levying large monetary fines against employers for NLRA violations—as high as $100,000 for repeat offenders—is also a concept congressional Democrats have recently endorsed as part of the House labor panel's proposal for the congressional budget reconciliation package.
- Reversing a Trump-era decision that created a new, employer-friendly framework for determining when an employer's handbook policies infringe on protected concerted activity under the NLRA. Employer policies, including social media rules, media communication rules, and civility rules, may soon be reviewed for violations of the NLRA under a lesser legal standard.
- Reversing precedent that made it easier for employers to establish workers are independent contractors. The Agenda suggests that the issue of employee status will be revisited, with a likelihood it will be harder for employers to show a worker was properly classified as an independent contractor. The NLRB may even make such misclassification a violation of the NLRA, a measure that also has congressional Democrat support.
- Limiting employer unilateral actions, even when the collective bargaining agreement has a broad management rights clause. The Agenda calls for returning to rules that require employers to bargain with unions over most changes to employment terms and conditions, regardless of whether a broad management rights clause exists. Reversal of these cases may make it harder for employers to take unilateral action without bargaining.
- Expanding what may be viewed as "protected concerted activity" or "mutual aid or protection" under the NLRA. We may see expanded protection for the means by which employees communicate (e.g., through an employer's email system), as well as broader subject matter that constitutes protected activity under the "inherently concerted doctrine" (e.g., employee discussions of health and safety issues that arise in the workplace).
- Scaling back employers' ability to govern civility in the workplace in certain circumstances. The Agenda may seek reversal of a recent case that overruled past precedent that had extended protections to employees who engage in misconduct while also engaging in protected concerted activity under the NLRA. Reversing this recent case diminishes the weight given to employers' interest in disciplining employee misbehavior while the employee is otherwise engaged in protected activity.
- Reversing recent cases finding confidentiality, non-disparagement clauses, and certain waiver of claims in separation agreements lawful. Reversal of these decisions may result in employers' separation agreements receiving more scrutiny for potential violations of an employee's Section 7 NLRA rights. Furthermore, the Agenda intends to review precedent concerning confidentiality of workplace investigations and confidentiality in arbitration agreements.
- Strengthening union access. The Agenda contemplates reversing decisions that limited union access to employer premises by "salts" (an individual hired by the union to seek employment in the employer's workforce who then conducts union organizing efforts as an employee). It further appears to call for returning to a prior NLRB rule that required employers to continue deducting union dues from workers' paychecks even after the collective bargaining agreement with the union expires.
- Expanding employee rights related to employer discipline. The Agenda implies a return to Weingarten rights for non-union employees, which requires employers to permit an employee to have a representative present with them during investigatory interviews. The Agenda additionally calls for review of rules for providing unions with information on workplace investigations, and for requiring employers to bargain with the union over discipline of employees even before the first contract negotiation with the union is finalized.
- Boosting union efforts to win recognition by secret ballot elections. If an employer is found to have potentially engaged in pre-election misconduct, Abruzzo and the NLRB appear primed to endorse using "card checks" as a remedy, which grants union recognition without an election based on signed authorization cards from a majority of union unit workers.
- Reestablishing NLRB jurisdiction to decide matters involving religious educational institutions. The Agenda appears ready to seek reversal of a recent decision that held the NLRB lacked jurisdiction to decide employment matters arising in the workplaces of religious education institutions on the basis that adjudication could potentially involve review of an institution's religious tenets.
This description of Abruzzo's Agenda is not exhaustive, and we can expect to continue to see movement in other areas of labor relations as the liberal-majority NLRB and its general counsel begin "centralized consideration" of well-settled and newly decided precedent. We will continue to monitor NLRB developments and doctrinal changes that impact employers.