Governor Whitmer Signs Legislation Repealing Michigan’s Right-to-Work Law

On March 24, 2023, Governor Gretchen Whitmer signed into law legislation repealing Michigan’s right-to-work law for private-sector employees. The legislation had previously passed the Michigan House of Representatives on March 14, 2023, and the Michigan Senate on March 21, 2023. Both bills passed along party lines.

NLRB General Counsel Says Confidentiality, Nondisparagement Clause Decision Applies Retroactively

On March 22, 2023, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued a memorandum clarifying the Board’s February 2023 decision that nondisparagement and confidentiality provisions in severance agreements are unlawful. In the memorandum, the GC states that she interprets the decision to apply retroactively to agreements already signed and that claims would not be time-barred as long as an employer maintains or enforces such terms.

The Practical NLRB Advisor: Winter 2023

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Winter 2023 issue of the Practical NLRB Advisor. This issue provides an overview of a host of controversial decisions and sharply divided opinions issued by the National Labor Relations Board (NLRB) resulting from the mid-December 2022 departure of Republican Board member John F. Ring.

Michigan House Passes Bills to Repeal State’s Right-to-Work Law, Debate Moves to Michigan Senate

On March 8, 2023, the Michigan House of Representatives passed two bills that would repeal Michigan’s current right-to-work law. The two bills, House Bill (HB) 4004 and HB 4005, passed 56–53 along party lines. HB 4004 relates specifically to right to work in the public sector; HB 4005 relates to right to work in the private sector.

NLRB Judge’s Decision Tees Up Reconsideration of Test for Religious Exemption

On February 23, 2023, an administrative law judge for the National Labor Relations Board (NLRB) ruled that a Catholic university in Florida is exempt from the Board’s jurisdiction as a religious institution. But the case tees up the test for the religious institution exemption to be overturned by the full Board—which could open up more religious educational institutions to Board jurisdiction.

NLRB Holds Confidentiality, Nondisparagement Provisions Illegal in Severance Agreements Presented to Section 7 Employees

On February 21, 2023, the National Labor Relations Board (NLRB) issued an important decision that may fundamentally change how and when employers use confidentiality and nondisparagement provisions.

NLRB Concludes Exigent Circumstances Delay, Do Not Eliminate, Decisional Bargaining

In a decision instructive to employers facing sudden, emergency conditions requiring immediate response, a divided National Labor Relations Board (NLRB) in Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., 372 NLRB No. 37 (December 28, 2022), expanded an employer’s obligation to bargain with a union in the aftermath of exigent circumstances.

Supreme Court Asks Whether Tort Claims to Recover Property Damaged During Strike Are Preempted by NLRA

On January 10, 2023, justices for the Supreme Court of the United States questioned attorneys for a ready-mix concrete company and the union representing its truck drivers over whether claims to recover the value of the company’s property destroyed as a result of a strike are preempted by the National Labor Relations Act (NLRA). The case, Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, could provide clarity for employers on how employers can recover the value of property that is destroyed during increasingly contentious labor disputes.

NLRB Reverses Course to Limit Property Owners’ Right to Limit Off-Duty Access for Section 7 Activity

In another ruling promoting a pro-labor agenda under the Biden administration, the National Labor Relations Board (NLRB) reverted to its pre-2019 precedent on the balance between the rights of property owners and the rights of employees under Section 7 of the National Labor Relations Act (NLRA).

The Practical NLRB Advisor: Fall 2022

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Summer 2022 issue of the Practical NLRB Advisor. In this issue, the Advisor takes a small departure from our usual practice of providing readers a snapshot of, and insights into, the current state of U.S. labor law. Instead, this issue aims to engage the National Labor Relations Board (NLRB) on some of the latest issues on the labor landscape.

NLRB Expands Make-Whole Remedy to Include ‘Direct or Foreseeable’ Damages

Fulfilling a top priority for National Labor Relations Board (NLRB) General Counsel Jennifer A. Abruzzo’s activist agenda, on December 13, 2022, the Board issued a decision that expands, arguably beyond statutory limits, the remedies recoverable by a successful charging party in unfair labor practice cases. The NLRB ruled that its make-whole remedy includes compensating employees “for all direct or foreseeable pecuniary harms suffered” as a consequence of labor violations.

NLRB Proposes Rescission of Recently Issued Rules on Elections

On November 4, 2022, the National Labor Relations Board (NLRB) published a notice of proposed rulemaking (NPRM) seeking to rescind the “election protection” rule published on April 1, 2020, and to restore the prior protocols, including holding the processing of an election petition in abeyance if a union files an unfair labor practice (ULP) charge—often referred to as a “blocking charge”—alleging an employer’s interference with the election process.

NLRB Proposes Rewidening of Joint-Employer Standard

On September 6, 2022, the National Labor Relations Board (NLRB) unveiled a draft notice of proposed rulemaking (NPRM) to replace its current rule, which clearly defines when two separate entities can be deemed joint employers under the National Labor Relations Act (NLRA), with the short-lived and much criticized standard it had articulated in its 2015 Browning-Ferris Industries decision.

The Practical NLRB Advisor: Summer 2022

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Summer 2022 issue of the Practical NLRB Advisor. In this issue, the Advisor takes a small departure from our usual practice of providing readers a snapshot of, and insights into, the current state of U.S. labor law. Instead, this issue aims to engage the National Labor Relations Board (NLRB) on some of the latest issues on the labor landscape.

Connecticut Update: Recreational Marijuana, Captive Audience Meetings, and Leave Notices Requirements Take Effect July 1, 2022

The Connecticut legislature has been busy in 2021 and 2022. Approximately twelve months ago, it passed legislation effectively legalizing recreational marijuana under Connecticut state law. Very recently, it amended Connecticut’s employee free speech statute to, among other things, prohibit employers from convening what organized labor often refers to as “captive audience meetings” with employees to address unionization efforts. Also, effective January 1, 2022, many employees became eligible for Connecticut Paid Family and Medical Leave benefits, and the legislature amended the Connecticut Family and Medical Leave Act (CTFMLA) to apply to almost all private sector Connecticut employers.

Connecticut Poised to Ban ‘Captive Audience’ Meetings and Expand Employee Free Speech Protections

Recently, the Connecticut General Assembly sent Public Act No. 22-24 (Substitute Senate Bill No. 163), “An Act Protecting Employee Freedom of Speech and Conscience,” to Governor Ned Lamont’s desk for signature. If enacted, the law will amend Connecticut’s employee free speech statute, Conn. Gen. Stat. Section 31-51q, significantly limiting an employer’s ability to speak directly with its employees.

The Practical NLRB Advisor: Spring 2022

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Spring 2022 issue of the Practical NLRB Advisor. In the last issue of the Practical NLRB Advisor we detailed the aggressive agenda of the Board’s newly minted general counsel (GC) and her apparent quest to persuade the Board to reverse or substantially modify broad swaths of extant decisional law under the National Labor Relations Act (NLRA).

DOL and NLRB Memorandum of Understanding (MOU) May Cause Employer Headaches

On January 6, 2022, the U.S. Department of Labor’s Wage and Hour Division (DOL/WHD) and the National Labor Relations Board (NLRB) announced a memorandum of understanding (MOU) between the agencies to share information, collaborate, and coordinate on investigations of potential violations of federal labor and employment laws. The MOU places particular emphasis on worker misclassification (both independent contractor and joint-employment relationships) and retaliation and represents the latest in the Biden administration’s efforts to ramp up enforcement in these areas.