Employee-Friendly Majority on NLRB May Mean Changes for Workplace Standards

With the swearing in of President Biden’s recent nominee in August of 2021, the National Labor Relations Board now has a 3-2 Democratic majority and is expected to swing toward employee-friendly decisions in the coming years.

The Board is made up of five members who act in a quasi-judicial capacity for cases originally heard by administrative law judges. Its jurisdiction covers both unionized and non-unionized workplaces and encompasses private-sector employers and employees engaged in interstate commerce as well as the United States Postal Service (other than Postal Service employees).

The NLRB’s power and influence has waxed and waned over the decades but is currently resurgent under the Biden administration, which has vowed to be the “most pro union administration to ever occupy the White House.”

In light of the composition of the current Board, combined with several recent memos released by its General Counsel, here are some areas likely to be revisited by the NLRB in 2022:

• Independent contractor: The National Labor Relations Act (NLRA) does not provide protection for workers determined by the NLRB to be independent contractors. The NLRB requested re-briefing of a Trump administration case related to employee classification with the intent of narrowing the standard under which the NLRB would consider a worker to be classified as an independent contractor, thus, enabling more workers to be classified as employees and afforded protections under the NLRA.
• Employee workplace rules: Prior to 2017, the NLRB standard regarding workplace rules was that even if a workplace rule did not explicitly restrict employee rights under the NLRA, it could still be deemed unlawful if employees viewed it as restricting their rights. The Board is reevaluating this established standard with an eye toward making it easier for employees to assert violations.
• Concerted activity: The NLRB has historically viewed “concerted activity” narrowly under the NLRA as only those activities undertaken to improve workplace conditions that relate directly to a particular job site. The NLRB is looking to broaden the definition of “concerted activity” to include participation in protests and other social movements which could enlarge the ability of workers to express their views on the job.
• Expanded damages: Traditionally, the NLRB has been limited to assessing monetary damages against employers only for back pay. The Board is looking to expand the remedies it can provide to also include things such as medical expenses incurred due to loss of insurance, financial losses due to early retirement withdrawals, and a panoply of other consequential damages.
• Bargaining units: The NLRB has signaled its willingness to return to a concept begun during the Obama administration; microunits. A microunit is a smaller unit of an employer’s organization that is allowed to unionize on its own, which in turn, allows a union to gain a foothold to organize within the larger enterprise.

Looking beyond specific cases, the NLRB has recently announced a joint effort with the Department of Labor (DOL) by releasing a Memorandum of Understanding (MOU) detailing the agencies’ most recent pact to enforce federal labor and employment laws. The partnership intends to ensure that workers receive proper wages and are able to take collective action to improve working conditions without fear of retaliation. The collaboration also seeks to allow for better enforcement against unlawful pay practices, misclassification of workers as independent contractors, and retaliation against workers exercising their legal rights.

Historically, the NLRB was created in 1935 to “protect the rights of employees and employers, encourage collective bargaining, and curtail certain private-sector labor and management practices that could harm the general welfare of workers, businesses, and the U.S. economy.” It does not have jurisdiction over government employees, agricultural workers, nor railroad and airline workers.

Members are appointed to five-year terms by the sitting President of the United States, with Senate approval, and with one member’s term expiring every year. This typically leads to a regularly changing political majority on the Board with resultant swings between employer- and employee-friendly decisions.

Next Steps

With the return to a more employee-friendly environment at the NLRB, businesses should take stock of their current practices. Working with counsel that is knowledgeable on labor and employment as well as with an experienced HR professional can help your business understand its obligations to maintain compliance in an ever-changing regulatory landscape.