Category: NLRB

December 14, 2017

NLRB Considering New Election Rules

On December 13, 2017, the National Labor Relations Board (NLRB) published a request for information in the Federal Register seeking public comments on the agency’s existing union representation election rules. The NLRB last changed these rules in December 2014 to establish what many refer to as “quickie elections”. At that time, the NLRB had a Democrat majority during the administration of President Obama.

Now with a 3-2 Republican majority for the first time since 2007, the NLRB’s request for information foreshadows changes that would likely lengthen the time between filing of a representation petition and an election. Other procedural elements could also change.

Persistent Political Divide

Both Democrats on the Board objected to issuing the request for information.

Member Mark Pearce, who was the NLRB Chairman when it adopted the current rules, pejoratively referred to the request for information as a “Notice and Quest for Alternative Facts.”

Member Lauren McFerran added, “The RFI is premature, poorly crafted, and unlikely to solicit meaningful feedback.”

The Republican majority responded that: “It is surprising that the Board lacks unanimity about merely posing three questions about the 2014 Election Rule, when none of the questions suggests a single change in the Board’s representation-election procedures.”

What the Board Is Reviewing

The NLRB’s request for information indicates that the Board’s specific focus is on the December 2014 amendments to the union election rules. It states that the Board is evaluating whether the rules should be:

Retained without change?
Retained with modifications? or
Rescinded, possibly while making changes to the prior election rules that were in place before?

Information Sought

The Board’s request specifically invites information relating to these questions:

Should the 2014 Election Rule be retained without change?
Should the 2014 Election Rule be retained with modification? If so, what should be modified?
Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations? If the Board should make changes to the prior Election Regulations, what should be changed?

Timeline

NLRB Chairman Philip Miscimarra’s term expires on December 16, 2017. Miscimarra was one of two dissenting Board members when the NLRB adopted the current election rules. He has announced that he will not seek or accept another term.

President Trump has not formally nominated anyone to fill the vacancy. Nor has the White House indicated who will become Chair upon Miscimarra’s departure. However, attorney Peter Ring is believed to be Trump’s pick to join the Board, subject to background checks.

By issuing this request for information just before Miscimarra’s departure, the Republican Board Members were able to start this process before losing the deciding vote.

Interested parties have until February 12, 2018, to respond to the request for information. By or soon after that time, the Senate may have confirmed Miscimarra’s replacement. That would then restore a Republican majority, likely paving the way for changes to the election rules.

Early Predictions on New Election Rules

It’s highly unlikely that the Board would have issued this request for information, over two vehement dissents, if it did not intend to make changes to the rules.

There are no obvious roadblocks to the Senate confirming a new Republican Member to fill Chairman Miscimarra’s seat in early 2018. Whether that is Peter Ring or someone else, they will likely reach accord with incumbent Republican Members Marvin Kaplan and William Emanuel on this issue.

Expect Democrats Pearce and McFarren to strenuously object to any changes. They have already articulated their grounds for doing in their 14 pages of dissent to the request for information itself.

Once the NLRB returns to full strength with a 3-2 Republican majority, it must still issue a proposed rule and allow further public comment. Nonetheless, it would not be surprising if new election rules are in effect before the end of 2018.

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November 21, 2017

What Are Employers Thankful for in 2017?

In advance of Thanksgiving 2017, I thought I would recap some of the most significant labor and employment law developments so far this year. Let’s take a look at what’s making employers thankful this holiday season!

I recognize that some do not personally agree with all of the policy and legal issues discussed here, but they are generally “positives” for employers with respect to the employment relationship.

No Increase (Yet) to Federal Overtime Threshold

This time last year, employers across the country were preparing for a huge increase in the salary level for many common FLSA overtime exemptions. The Department of Labor’s new rules then scheduled to take effect December 1, 2016, would have more than doubled the salary requirement from $455 weekly to $913 per week. In addition, the rules provided for automatic increases to the threshold every 3 years.

Then, on November 22, 2016, a federal judge in Texas enjoined the rule before it took effect. The Department of Labor preserved its rights to keep fighting, but under President Trump it has shifted its priority toward reconsidering the rules. The injunction is still on appeal, but it is clear the Trump DOL will not try to implement the 2016 rules.

It seems likely that the DOL will instead come up with a new set of rules. They will probably increase the salary requirement to a level below $913 per week. But we are probably at least a year away from any changes taking effect.

Republican Control of the National Labor Relations Board

Attorney Peter B. Robb was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017. He replaces Obama-appointee Richard F. Griffin, Jr., who served from November 4, 2013 to October 31, 2017.

Robb has represented employers in labor and employment law for approximately the past 30 years. For more on his background, read this earlier post.

As chief prosecutor for the NLRB, Robb will have significant control over the agency’s agenda during his 4-year term.

Two President Trump nominees had already joined the 5-member Board, giving Republicans a 3-2 majority over the agency’s adjudicatory body. Read more about new Labor Board members Marvin Kaplan and William Emanuel.

Experts anticipate that the Republican majority will reverse many pro-labor decisions from the Obama-era NLRB. Some prime targets for review are decisions related to:

Joint employer doctrine
Mandatory arbitration/class-action waivers
Micro bargaining units
Union election procedures
Social media policies
Graduate student collective bargaining
Employee use of employer-provide email accounts
Confidentiality of internal investigations

Although employers must continue to abide by the National Labor Relations Act, including respecting employees’ Section 7 rights, they should gradually regain more leeway to run their businesses with the new Board.

Congressional Disinterest in Employment Laws

Sure, healthcare and taxes are major topics of interest for all businesses. And they’re very much on the table. But there has been little meaningful discussion of further regulating the employment relationship at the federal level.

If anything, this Congress may eventually try to loosen burdens on employers. This could include legislation to expedite issues that the NLRB and Department of Labor could more slowly address through adjudication and rulemaking. Efforts are already underway to relax existing joint employer tests, for example.

One issue raised by Trump’s campaign, paid family leave, remains just off the back burner. However, the most viable legislation floated so far seems to involve optional leave programs. It seems clear that the Republican Congress isn’t eager to impose more burdens on employers just because the President threw an idea out there.

What Else Would Make Employers Thankful?

Here are just a few thoughts about some other issues that would make employers thankful going forward. Some would be easier to achieve than others

1. More effective means of preventing workplace harassment.

Sexual harassment has become a hot media topic recently. This is unfortunate in that the harassment, including assault, occurred in the first place. But at least the recent accounts are shining a spotlight and motivating people to do something about it.

This does, however, have a significant potential impact on employers. Various employment discrimination laws prohibit harassment based on many protected characteristics not limited to sexual harassment. It’s reasonable to assume that more employees will come forward to report harassment in light of the recent societal openness on the subject. This will require employers to expend resources on investigations and enhanced training. Plus, some will inevitably be held liable, meaning settlements, legal fees, and damages awards.

For some well-run businesses, this will mean increased costs, both direct and to productivity. They should recognize the inevitable and try to come up with innovative ways to prevent harassment. Areas of consideration include hiring, performance reviews, management accountability, and even exit interviews. This may well not be an area where the law will help employers. But, if necessary, the existing laws can help provide the motivation to act.

2. Resolution of the Affordable Care Act debate.

Congress remains within a couple Senate votes from repealing the Affordable Care Act (“Obamacare”). Like it or hate it, employers need to know what’s going to happen with this law that still hasn’t fully taken effect. The only thing that seems clear is that many of the existing (in writing) requirements upon employers will never actually materialize. But it’s still something of a guessing game to determine what will apply and when.

Most likely, we’ll have a new set of rules in this area within a couple of years. But who knows what they’ll look like! With the ever increasing cost of health insurance, uncertainty surrounding employers’ responsibilities is a major headache, at best.

3. Clarity in dealing with employee disabilities.

There are so many laws that apply when addressing an employee medical situation. These include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Family and Medical Leave Act (FMLA), worker’s compensation laws, state disability discrimination laws, and more.

It’s hard enough to comply with any one of these sets of rules, let alone all of them together. They leave many traps for the unwary and the well-intentioned employer alike. Even though employers usually want to be fair to employees with medical conditions, they must consider other employees and effective operation of the business as well.

For now, employers just have to accept that managing these situations is complicated. Perhaps one day some wise lawmakers can come up with a good a solution that make many employers thankful.

You may also be interested in reading 5 Big Legal Questions for New York Employers.

November 8, 2017

Peter Robb Is New NLRB General Counsel

On November 8, 2017, the U.S. Senate confirmed Peter Robb to a 4-year term as the next General Counsel of the National Labor Relations Board. Robb previously served as an NLRB attorney, but has been in private practice for the past 30+ years.

The Senate voted 49-46 along party lines. Before Robb’s confirmation, Jennifer A. Abruzzo had served as Acting General Counsel since Richard Griffin’s term expired on October 31, 2017.

The new NLRB General Counsel will be responsible for investigating and prosecuting unfair labor practice cases and overseeing the NLRB field offices.

Meet the New NLRB General Counsel

Peter B. Robb most recently practiced labor and employment law with Downs Rachlin Martin PLLC in Vermont since 1995. He previously practiced with Proskauer Rose LLP.

From 1981-1985 he served as chief counsel to NLRB Member Robert P. Hunter (R). Before that, he had been an NLRB field attorney and a supervisory attorney with the Federal Labor Relations Authority.

Robb received his B.A. from Georgetown University and his J.D. from the University of Maryland School of Law.

About Jennifer Abruzzo

Jennifer Abruzzo became the NLRB’s Deputy General Counsel on November 4, 2013. That was the same day that Richard Griffin began his 4-year term as General Counsel. Before that, she held other positions in the General Counsel’s office. In total, Abruzzo has spent more than 20 years with the National Labor Relations Board. Her other positions have included Field Attorney, Supervisory Field Attorney, and Deputy Regional Attorney in the Miami, Florida office. She also served as Deputy Assistant General Counsel in the Division of Operations-Management in Washington, D.C.

Abruzzo is not known to have taken any significant action during her one week as Acting General Counsel.

Rosemary Collyer is the only woman to have served as NLRB General Counsel in a non-acting capacity. She held the position from 1984-1989. She is now a Senior United States District Judge on the U.S. District Court for the District of Columbia and the Presiding Judge of the U.S. Foreign Intelligence Surveillance Court.

Status of NLRB Transition

Robb’s confirmation as the new NLRB General Counsel completes the initial transition from the Obama-era Labor Board. The General Counsel operates independently from the 5-member National Labor Relations Board, but has considerable influence over the cases brought to the Board for adjudication.

With two Trump appointees (William Emanuel and Marvin Kaplan) already serving on the Board, the 3-2 Republican majority will likely get to work rolling back many positions taken by their recent pro-labor predecessors.

However, NLRB Chairman Philip Miscimarra has announced he will not accept a new term when his expires in December. This will create a third Labor Board vacancy in President Trump’s first year in office. Morgan, Lewis & Bockius LLP partner John Ring and California attorney/politician Mike Stoker have been mentioned as potential nominees.