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Making Waves at the NLRB: More to Navigate
Practical Law Legal Update w-003-2600 (Approx. 5 pages)
Making Waves at the NLRB: More to Navigate
by Practical Law Labor & Employment
| Law stated as of 30 Aug 2016 • USA (National/Federal) |
A recap of recent decisions by the National Labor Relations Board (NLRB) in the weeks leading up to the expiration of Member Kent Hirozawa's term on August 27, 2016.
As Labor Day approaches and we say goodbye to the last days of summer, the NLRB (Board) has been preparing for a goodbye of its own. Member Kent Hirozawa's term expired on August 27, 2016, after the Senate failed to confirm his reappointment by President Obama.
Member Hirozawa's anticipated departure sparked a riptide of significant Board activity. The Board issued more than 20 decisions in one week, and more decisions have since been released with an August 26 issuance date. These decisions tackled issues such as the NLRA's coverage of graduate student teaching assistants and secular teachers at religious universities, and increased remedies for unfair dismissals. Cap that with a decision by the US Court of Appeals for the Ninth Circuit adopting the NLRB's position that mandatory arbitration agreements with class action waivers are invalid, and this is a Labor Day for the Board to celebrate.
As a result of these and other recent decisions, the NLRB now impacts more employers and individuals in more workplaces than ever before. For example, recent Board decisions have resulted in:
- More jurisdiction. The Board recently held that more individuals are employees under the NLRA and therefore are afforded more rights including the right to unionize. For example, the Board held that the NLRA now covers:
- graduate student teaching assistants as employees, overruling its own precedent (see Legal Update, University Student Assistants Are Employees Covered by the NLRA and Entitled to Unionize: NLRB);
- more teachers at religious universities, based on a recently nuanced test (see Legal Update, Part-Time and Contingent Faculty in University's Religious Department Should Be Excluded from Bargaining Unit: NLRB); and
- jointly employed workers of rail carriers, even though rail carriers are otherwise exempt from NLRA coverage (see Legal Update: NLRB Exercises Jurisdiction over Employer Despite Joint Employment with Entity Not Subject to the NLRA).
- More remedies. The Board increased the remedies for unlawfully discharged employees by allowing claimants to recover search-for-work and interim employment expenses, without a reduction for the resulting interim earnings (see Legal Update, NLRB Adopts New Policy Awarding Employees Search-For-Work and Interim Employment Expenses Regardless of Interim Earnings).
- More allies. Just this week, the Ninth Circuit joined the US Court of Appeals for the Seventh Circuit and backed the Board's view that class and collective action waivers in mandatory arbitration agreements are unlawful and unenforceable. This decision advances a circuit split with the US Courts of Appeals for the Fifth and Eighth Circuits, which have enforced employment arbitration agreements that waive class and collective remedies. (See Legal Update, Ninth Circuit Holds that Mandatory Arbitration Agreements with Class Action Waivers Violate NLRA, Advances Circuit Split.)
- More regulated conduct. Recent decisions have expanded the scope of conduct that is covered by and violates the NLRA. For example:
- in Omni Commercial Lighting, Inc., the NLRB expanded the Interboro doctrine, which holds that a single employee who invokes a right the employee honestly and reasonably believes is grounded in a collective bargaining agreement (CBA) engages in concerted activity, even where the CBA did not cover the employee's current employment (364 N.L.R.B. No. 54 (July 19, 2016); see Legal Update, NLRB Expands Interboro Doctrine; Personal Claim Under Inapplicable CBA Is Concerted); and
- in Schwan's Home Service, Inc., the Board held that an employer violated the NLRA by restricting disclosure of company information in an employee handbook and confidentiality agreement, provisions that commonly are incorporated into handbooks and employee agreements. (364 N.L.R.B. No. 20 (June 10, 2016); see Legal Update, Work Rules Restricting Disclosure of Company Information in Handbook and Confidentiality Agreement Violated NLRA: NLRB).
- More amici. The Board has increasingly relied on amicus briefings to justify or support its decisions making sweeping changes in the law (see https://www.nlrb.gov/cases-decisions/invitations-file-briefs/archived-notices-briefs-and-invitations). Recent decisions for which the Board relied on solicited amicus briefings include:
The NLRB has been making waves beyond the world of unions, lockouts, and collective bargaining agreements. Recent Board decisions are flooding the shores of private non-unionized workplaces, challenging once-common employment agreements and workplace policies. All practitioners now must learn to stay afloat in the sea of more NLRB relevance.
In addition to its Legal Updates on recent key issues, Practical Law has many resources to help navigate the changing tide at the NLRB. For more information, see Practice Notes:
For general information about NLRA coverage and scope, see NLRB Jurisdictional Limits and Standards Chart. For information regarding the NLRA's regulation of employees' social media conduct, see Employees' Use of Social Media and the NLRA Toolkit.