The Practical NLRB Advisor: Fall 2023

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Fall 2023 issue of the Practical NLRB Advisor. In this edition of the Advisor, we reflect on the activity at the National Labor Relations Board (NLRB) at the end of a very active summer. With the August expiration of Member Gwynne A. Wilcox’s term approaching, the Democratic-led Board majority used the event to release a slew of end-of-term decisions that continued the agency’s course of reversing or substantially modifying broad swaths of extant decisional law under the National Labor Relations Act (NLRA).

In this issue of the Advisor, we cover three of those sharply divided decisions, taking a deeper dive into the Board’s alarming new standards for evaluating workplace rules and disciplinary decisions and its return to an Obama-era independent-contractor standard that could make it more likely that workers will be found to be employees entitled to protections under the NLRA. In addition, we examine two more decidedly pro-labor directives issued by the Board’s general counsel.

Though Member Wilcox’s term expired on August 27, 2023, she was not gone from the NLRB for long. The U.S. Senate approved her renomination to a second five-year term about one week later. Since the White House has not yet submitted a nomination to the Senate for the other vacant seat on the five-member Board, the agency is now split 3-1 on ideological and political lines with Member Marvin E. Kaplan as the sole Republican.

The timely and successful renomination of Wilcox is significant since, by long-standing tradition, the Board typically declines to overrule any existing precedent absent three votes to do so. With Wilcox back in the mix, there is a presumptive three-vote majority on virtually all the existing hot issues. Employers should now plan that the recent tide of important Board reversals will continue unabated.

The Board’s other consequential end-of-term reversals will be detailed in the next Advisor edition.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor these and other labor law developments and provide updates on the firm’s Traditional Labor Relations blog. Important information for employers is also available via the firm’s webinars and Traditional Labor Relations podcasts.