Hunton Employment & Labor Perspectives

Last week, the United States Court of Appeals for the Fifth Circuit dismissed an appeal by the National Labor Relations Board (“Board” or NLRB) of a federal district court’s decision to vacate a new joint employer rule that initially was slated to take effect months ago. 

On December 22, 2023, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a final rule that could have consequential effects for federal construction contractors and subcontractors.  The rule, which implements President Joe Biden’s Executive Order 14063, directs agencies awarding “large scale construction contracts” to require the use of project labor agreements (PLA). 

The U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College decided that the race-based admissions programs at Harvard College and the University of North Carolina (the “Schools”) violated the Equal Protection Clause of the Fourteenth Amendment. While the Court answered the question for publicly funded schools, it is an open question whether, and how, the Court’s decision will impact affirmative action and diversity programs for private employers, as discussed in more detail below.

The National Labor Relations Board (“Board” or NLRB) recently decided in Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) to impose extraordinary remedies upon an employer who violated a court order imposing certain collective bargaining obligations and committed multiple violations of the NLRA throughout the collective bargaining process. The extraordinary remedies included: the posting and distribution of a notice explaining employee rights under the NLRA (in addition to the standard notice that states the NLRB found NLRA violations, the violator will not commit those violations in the future, and the remedies); the reading of the notices in the presence of employees by the employer’s chief executive officer, or, if the employer prefers, by a Board agent in the presence of the CEO; and site visits by an NLRB agent to determine compliance for one year.

The National Labor Relations Board’s (NLRB or the “Board”) Office of General Counsel (“GC”) released an internal advice memorandum on February 27, 2023, which indicates that the NLRB will seek to enforce the National Labor Relations Act (NLRA or the “Act”) against employers that allegedly retaliate against employees for having workplace discussions about racism. The memorandum—which concerned employment actions the Kaiser Permanente Bernard J. Tyson School of Medicine, Inc. (the “Tyson Medical School”) took with respect to a faculty member/physician following various discussions about race in the workplace—sets forth an expansive interpretation of conduct that constitutes protected concerted activity under Section 7 of the Act so as to include general discussions “working to end systemic racism, including its impact at the [e]mployer.”

On March 22, 2023, the General Counsel of the National Labor Relations Board (NLRB or the “Board”), Jennifer Abruzzo, issued a memorandum providing guidance in light of the NLRB’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023). As previously reported, the Board in McLaren Macomb held that overly broad non-disclosure and non-disparagement provisions in severance agreements violate employee rights under the National Labor Relations Act (NLRA or the “Act”). The General Counsel’s memorandum—which is directed to the Board’s regional offices over which she exercises supervisory authority—seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors. The memorandum is not legally binding, but it does give employers a more informed roadmap for how the Board initially will handle unfair labor practice (“ULP”) charges challenging severance agreements.

The National Labor Relations Board (“Board” or NLRB) decided in McLaren Macomb, 372 NLRB No. 58 (2023) that an employer violated the National Labor Relations Act (NLRA) by offering furloughed employees severance agreements that contained confidentiality and non-disparagement provisions. “A severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their [NLRA] rights, and that employers’ proffer of such agreements to employees is unlawful,” announced the Board. In rendering the decision, the NLRB overruled Baylor Univ. Med. Ctr., 369 NLRB No. 43 (2020)[1] and IGT d/b/a Int’l Game Tech., 370 NLRB No. 50 (2020). In those cases, the Board decided that employers did not independently violate the NLRA simply by presenting employees with severance agreements containing non-assistance, non-disclosure, and non-disparagement provisions that arguably restricted NLRA rights absent some additional circumstances.

Yesterday, the National Labor Relations Board (“Board” or “NLRB”) in American Steel Construction, Inc., 372 NLRB No. 23 (2022) decided that employers must meet a heightened burden to expand a voting unit sought by a union in a union election. The decision is a significant development because it makes it easier for unions to organize workforces. And it marks yet another reversal of precedent by the Board to the benefit of unions. (We’ve discussed prior reversals here and here.)

Last week, the National Labor Relations Board (“Board” or “NLRB”) decided that an employer no longer can unilaterally stop union dues deductions from employee pay pursuant to a dues-checkoff clause once a collective-bargaining agreement (“CBA”) expires absent a lawful impasse during negotiations for a successor agreement. Valley Hosp. Med. Ctr., Inc., 371 NLRB No. 160 (2022) (“Valley Hosp. II”). The decision marks another reversal of Board precedent in favor of unions by the Biden NLRB. (We discussed a prior reversal, which concerned employee appearance policies here.)

Earlier this week, the National Labor Relations Board (“Board” or “NLRB”) decided that employers cannot restrict employees from displaying union insignia (e.g., buttons, clothing, pins, and stickers) absent a showing of “special circumstances” in Tesla, Inc., 370 NLRB No. 131 (2022).  In connection with this ruling, the Board overruled Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), which analyzed the lawfulness of facially neutral work rules that regulated the size and appearance of such union insignia under a less exacting standard.  Employers with policies that address employee appearance, such as dress code or uniform policies, should review those policies for compliance purposes in light of Tesla.