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.

100 Days of the Biden Administration, Part I: Key Labor and Employment Policy Developments

April 30, 2021, marked President Joe Biden’s 100th day in office, and his administration has wasted little time advancing its policy priorities. At this moment, the administration is focusing most of its attention on repealing much of the policy accomplishments of the previous administration but can be expected to advance its own proposals in short time. Additionally, Democrats in the U.S. House of Representatives are looking for ways around the U.S. Senate’s legislative filibuster in order to advance their ambitious legislative agenda. Below is a very brief outline of the major labor and employment legislative actions of President Biden’s first 100 days.

The Practical NLRB Advisor: Winter 2021

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Winter 2021 issue of the Practical NLRB Advisor. This issue offers insight into the anticipated significant changes in labor relations policy we can expect to see with the election of President Joe Biden, a longtime vocal supporter of organized labor, coupled with control of both chambers of Congress by the traditionally labor-oriented Democratic Party.

Cal/OSHA COVID-19–Related Citations May Provide Leverage to Labor Unions and Their Members

A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.

5 Key Employee Handbook Updates to Consider in 2021

With the onslaught of the pandemic in 2020, many employers were busy dealing with staffing issues, safety concerns, and COVID-19–related legislation. There may have been little to no time to address handbook policies. With many changes on the horizon in 2021 under President Biden’s administration and the adaptations in the working environment due to COVID-19, it may be a good time for employers to turn to the company handbook to ensure it is up to date. This article will highlight five areas to which employers may want to give special attention in 2021.

The Top 10 Labor and Employment Issues Keeping Retailers Up at Night in 2021

Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

Changing Administrations, Changing Labor Policies, Part II: The 10 Most Prevalent Issues in Labor Law

Part one of this two-part series covered changes to U.S. labor law policies that employers can expect to see with the new administration. Part two is a brief summary of the most prevalent issues in current labor law and their likely disposition under a new Biden administration and National Labor Relations Board (NLRB).

Changing Administrations, Changing Labor Policies, Part I: What Employers Can Expect From the Biden Administration

The election of Joseph R. Biden Jr. to the White House, a long-time vocal supporter of organized labor, coupled with control of both houses of the U.S. Congress by the traditionally labor-friendly Democratic Party, is the prelude to changes on the labor law front, a number of which are potentially significant. (Note that following Democratic victories in both Georgia runoff races, the U.S. Senate is technically split 50-50. However, in case of a tie vote in the Senate, Vice President Kamala Harris is constitutionally empowered to cast a tie-breaking vote. Thus, Democrats have control of the upper chamber, albeit by a very slim margin.) The two major engines of this anticipated change will be the U.S. Congress, most especially the U.S. Senate, and the National Labor Relations Board (NLRB). Part one of this two-part series regarding labor law policy and the new administration discusses these anticipated labor law changes.

Labor Reform: What to Expect From a Biden Administration With Democratic Control of Congress

At noon, eastern standard time, on January 20, 2021, Joseph R. Biden Jr. became the 46th president of the United States, giving Democrats control of the executive branch, and, albeit by the thinnest of margins (with Vice President Kamala D. Harris presiding as president of the U.S. Senate), the legislative branch of the U.S. government for the first time since 2011. While that transition will, no doubt, impact a great many national and global issues, the focus of this article is the potential impact that this dynamic will have on U.S. labor law and policy.

President Biden Asks NLRB General Counsel to Resign

President Joe Biden began his election campaign in a union hall in Pittsburgh and pledged on the eve of the election to be “the most pro-union president you’ve even seen.” As immediate evidence of his intent to make good on that pledge, it is being reported that one of his first acts as president (the email taking this action was apparently sent at 12:23 p.m. on January 20, 2021) was to ask for the resignation of National Labor Relations Board General Counsel Peter Robb. The president apparently gave Robb until 5 p.m. on January 20, 2021, to resign or be fired.

The Practical NLRB Advisor: Fall 2020

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Fall 2020 issue of the Practical NLRB Advisor. This issue offers insight into the future of labor policy in the wake of a politically polarized presidential election year and a sharply divided electorate. Even though the 2020 election is over, we can expect to see continued battles over traditionally pro-labor segments of the workforce, controversial legislation that is likely to be advanced in the near term, and recent National Labor Relations Board (NLRB) activity.

The Practical NLRB Advisor: Summer 2020

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the summer 2020 issue of the Practical NLRB Advisor. This issue offers insight into the new, and, oftentimes unanticipated, labor/management issues resulting from the coronavirus pandemic. While COVID-19 brought an abrupt halt to many aspects of daily life, it has had quite the opposite effect on labor relations: novel bargaining obligations arose, and new bargaining mechanics became necessary. These unexpected issues, coupled with an increase in employee concerted activity in response to the pandemic, have all tested the capacity of the parties and the law to adapt to unprecedented circumstances.

The ‘Restoring Balance in Alberta’s Workplaces Act’: Bill 32 Proposes Key Changes to Labour and Employment Legislation

On July 7, 2020, the Government of Alberta proposed important changes for workplaces through Bill 32, the Restoring Balance in Alberta’s Workplaces Act, 2020 (Bill 32). The stated purpose of Bill 32 is to increase investment in Alberta’s workforce and to reduce the administrative burden for employers. On July 29, 2020, Bill 32 received Royal Assent.

NLRB Disentangles Itself From Religious Education Institutions

On June 10, 2020, the National Labor Relations Board (NLRB) renounced jurisdiction over faculty employees at most religious educational institutions. The Bethany College case overruled the NLRB’s 2014 Pacific Lutheran University decision, through which many NLRB Regional Directors had ordered union elections at religiously-affiliated schools (such as a Catholic university in Seattle) In Bethany College, the NLRB adopted a new jurisdictional standard, adopted from a 2002 opinion from the U.S. Court of Appeals for the District of Columbia Circuit, University of Great Falls v. NLRB, under which it will not assert jurisdiction over an institution that: (a) holds itself out to the public as a religious institution, (b) is nonprofit, and (c) is religiously affiliated.

U.S. District Court Vacates Parts of New NLRB Election Rules and Remands Non-Vacated Parts for Reconsideration

In an abbreviated order issued on May 30, 2020, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia ruled that the National Labor Relations Board (NLRB) improperly implemented portions of the final rules on representation elections initially scheduled to take effect on April 16, 2020. The NLRB delayed implementation to May 31, 2020, due to the COVID-19 pandemic.