Labor Relations Law Blog

On October 26, 2023, the National Labor Relations Board (“NLRB”) issued its long-awaited final rule on “joint employer” status under the National Labor Relations Act (“NLRA”).  The new rule significantly expands the NLRB’s joint-employer doctrine, which will have adverse effects on many common business arrangements, including the use of temporary employees, subcontracting, and franchisee-franchisor relationships.  The new rule is effective on December 26, 2023, and applies only to cases filed after that date.  As explained herein, the new rule expands the definition of a joint employer in several key respects.

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On December 16, 2022, the National Labor Relations Board issued a decision in the case of Bexar County Performing Arts Center which restricts the right of property owners to restrict the right of employees who work on the property to engage in protest activity that is protected by the federal labor laws.  The Board held in that case that a San Antonio, Texas performing arts venue did not have the right to evict employees of a symphony who distributed leaflets at the site protesting its decision to use recorded music instead of live musicians for a production of a classical music production, which stated that the patrons paid for and deserved to “DEMAND LIVE MUSIC!” The site owner had prohibited the symphony’s employees from distributing leaflets anywhere on its property.

In a December 13, 2022 ruling involving employer Thryv, Inc., the National Labor Relations Board’s (NLRB) panel embraced a concept asserted by the NLRB’s prosecutorial arm which expands available remedies for employees claiming they are victims of discrimination and retaliation.  By making available consequential damages for actual and foreseeable harm resulting from conduct alleged to be unlawful, the NLRB is looking beyond mere out of pocket loss. 

With a new Administration, comes a new approach on how labor law should be enforced.  The National Labor Relations General Counsel Jennifer Abruzzo released General Counsel Memorandum 21-04 “Mandatory Submissions to Advice” on August 12, 2021.  Abruzzo’s Memo indicates changes to come with respect to evaluating whether an employer rule violates employees’ Section 7 rights.

For the first time in years the NLRB’s five-member Board, which decides cases and enacts regulations, has a Democratic majority.  The Board will decide cases as presented.  It is expected that case rulings will revise legal standards applicable to the workplace and reverse decisions from the previous Administration and the previous Republican majority on the Board. 

President Biden Names Peter Ohr Acting General Counsel of the NLRB

Following the unprecedented firing of National Labor Relations Board (“NLRB”) General Counsel (“GC”), Peter Robb, on January 25, 2021, President Biden designated Peter Sung Ohr (“Ohr”) to serve as Acting GC of the NLRB.  Ohr, a career-long employee of the NLRB, began his career in the NLRB Honolulu Sub-regional Office as a Field Attorney, and in 2011, was appointed Regional Director of the NLRB’s Chicago Regional Office.  As Acting GC, Ohr’s term is limited to forty days. 

Before taking office President Biden identified former Boston Mayor and Building Trades official Martin Walsh as his nominee to serve as Secretary of Labor. Assuming the Senate confirms, the Secretary of Labor will carry significant weight on labor policy and enforcement involving issues including wage and hour, employee benefits, union and management reporting, workplace safety, and hot topic issues such as independent contractor misclassification.

On February 25th, the National Labor Relations Board unanimously vacated its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined standards for establishing joint employer relationships. This action was taken after the NLRB’s Inspector General reported that Board member William Emanuel had a conflict of interest when he ruled on the case.

On February 20th, the United States Supreme Court ruled that in a collective bargaining agreement, no ambiguities should be interpreted by the absence of a provision concerning the duration of retirees’ healthcare benefits. Benefits clearly expire when the collective bargaining agreement itself expires. The Supreme Court’s decision, CNH Indus. N.V. v. Reese, was unanimous.

The National Labor Relations Board is considering modifying its case processing procedures in ways that could benefit employers, according to an internal NLRB memorandum obtained by the paid subscription service Bloomberg Law.