By: Jennifer L. Mora and Elliot Fink On April 8, 2024, National Labor Relations Board (NLRB or Board) General Counsel Jennifer Abruzzo issued GC Memo 24-04, which builds on previous GC memoranda from 2021 and 2022 where General Counsel Abruzzo announced her intention to pursue broad remedies, such as consequential damages, against employers who commit unfair labor practices in violation of the National Labor Relations Act. The new memorandum expands the GC’s capacious reading of the Act’s remedial powers into the thorny area of work rules (and contract terms) currently regulated by the Board ..read more

By: Danielle Shapiro Seyfarth Synopsis: Last Friday, March 8, 2024, the United States District Court for the Eastern District of Texas struck down the National Labor Relations Board’s (“NLRB”) 2023 Joint Employer rule (“2023 Rule”) finding that it was both unlawfully broad and arbitrary and capricious. Background The 2023 Rule contains the following relevant provisions: Subsection (a) provides that an “employer” is one who has an employment relationship with their employees under common-law agency principles. Subsection (b) states that two things are required to be a “joint employer”: (1) be ..read more

By: Jennifer L. Mora and Elliot R. Fink Earlier this week, by denying the employer’s motion to reconsider in Cemex Construction Materials Pacific LLC, 372 NLRB No. 157 (2023), the National Labor Relations Board not only validated the applicability of its new Cemex standard, but also foreshadowed an intense appellate review process expected in the federal Circuit Courts of Appeal. This follows after the NLRB General Counsel issued guidance regarding Cemex in a memorandum earlier this month explaining key issues, such as how unions can demand recognition and bargaining, how unfair labor practic ..read more

By: John T. Ayers-Mann and Jennifer Mora Seyfarth Synopsis: On October 30, 2023, the Biden Administration issued a sweeping order on artificial intelligence. Among its numerous provisions, the Order touches on several issues of interest to employers. For employers with labor-related concerns in particular, the most significant provision could be the impact of the provisions relating to surveillance of workers. The Executive Order comes nearly one year after the National Labor Relation Board’s General Counsel issued guidance on the use of artificial intelligence in the context of managing empl ..read more

By: Joshua Ditelberg and Cary Burke On October 26, 2023, the National Labor Relations Board published its newest Standard for Determining Joint Employer Status in the Federal Register, which becomes effective 60 days from publication.  In many ways, the Rule draws its essence from the Board’s previous joint-employer doctrine, in which the Board  held that an entity could be considered a joint employer under the National Labor Relations Act if it exercises sufficient “direct,” “indirect” (e.g., by directing an intermediary service provider’s relationship with the provi ..read more

By Alex Meier & Cary Reid Burke  The National Labor Relations Board moved from theory to practice in this administration’s battle against restrictive covenants. Recently, the Regional Director of Region 9 of the National Labor Relations Board filed a consolidated complaint alleging that certain restrictive covenants contained in offer letters and policies in an employee handbook violated the National Labor Relations Act. This complaint is a logical outgrowth of GC Memo 23-08, in which NLRB General Counsel Jennifer Abruzzo set out her view that “the proffer, mainte ..read more

By: Molly Gabel and Rachael Reed On August 31, 2023, the National Labor Relations Board’s Democratic majority issued a decision in American Federation for Children, Inc. The ruling expands the scope of activities protected by Section 7 of the National Labor Relations Act (NLRA) to include statutory employees’ efforts to advocate for nonemployees. To reach this outcome, the Board overruled Amnesty International, which held that employee advocacy on behalf of individuals who do not qualify as “employees” under the NLRA is excluded from Section 7 protections.  The Board’s 2019 Amnesty Inter ..read more

By: Jamie Rich, Lisa Nichols, and Joe Vento On August 25, 2023, the National Labor Relations Board (NLRB or Board) issued its much-anticipated Cemex decision, which has broad implications for union organizing. It handed unions a win with a partial return to the Joy Silk standard. Now, if a union demands recognition from an employer because it claims that it has obtained union authorization cards demonstrating majority support within a bargaining unit, the employer must pursue one of two options: (1) it can recognize and bargain with the union or (2) it can file a petition (a so-called RM ..read more

By: Sul Ah Kim and Cary R. Burke Earlier this week, the National Labor Relations Board (“NLRB” or “Board”) overturned established precedent and held that a facially neutral work rule is presumptively unlawful if a “reasonable” employee predisposed to engaging in protected concerted activity could interpret the rule to have a “coercive meaning.” Stericycle, Inc., 372 NLRB No. 113 (August 2, 2023).  Assuming the General Counsel makes this modest showing, which the dissent correctly notes is an extremely low bar to clear, the employer may rebut this presumption by proving that the rule “adv ..read more

By: Saman Haque and Cary Burke Seyfarth Synopsis: Recently, an Administrative Law Judge (ALJ), issued a decision in two cases that create the opportunity for the National Labor Relations Act to have a more expansive view of what constitutes protected activity. The ALJ’s decision could also provide employees an expanded definition of protected activity by accepting that “inherently concerted” activity ought to be protected so long as the activity is being engaged in by employees for the purpose of improving the conditions of their workplace, including what seems to be workplace culture and ide ..read more