Today, the NLRB issued two landmark cases reversing precedent on the Board’s test for work rules and joint employment. In The Boeing Company, 365 NLRB No. 154, the Board reversed a 2004 decision that prior Boards used to find unlawful “a large number of common-sense work rules and requirements that most people would reasonably expect every employer to maintain.” In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156, the Board overruled the Browning-Ferris joint-employment test and returned to requiring direct control over essential terms and conditions of employment before it will find joint employment status.
On Monday, December 11, 2017, the Board issued a decision holding that Administrative Law Judges can approve an employer’s offer to settle unfair labor practice charges so long as the settlement offer is “reasonable,” even if the general counsel and charging party object to the settlement. The case reverses Obama-era precedent that held that an ALJ can approve a settlement only if the settlement provides “complete relief” for every alleged unfair labor practice. That standard made it impractical for employers to settle unfair labor practice charges because employers received no compromise in exchange for foregoing full-blown litigation.
The newly-appointed NLRB General Counsel Peter Robb issued his list of priorities in Advice Memo 18-02 released December 4, 2017. The Memo sets forth the “Mandatory Submissions to Advice” – the kinds of cases Regional Directors must submit to the Division of Advice to obtain guidance before issuing a complaint. The Advice Memo signals the GC’s intent to assist the Board in undoing much of the Obama-era Board’s sweeping changes to federal labor law. As predicted, many of the priorities focus on the Board’s handbook-related changes, granting employee access to employer email systems, and confidentiality rules in investigations.
On October 10, Local 100, United Labor Unions filed an unfair labor practice charge against the Dallas Cowboys claiming that it unlawfully threatened players to prevent them from engaged in protected concerted activity. Earlier this week, Cowboys’ general manager Jerry Jones threatened to bench players who refused to stand for the national anthem.
The charge highlights how simple it is for literally anyone on the street to file an unfair labor practice (“ULP”) charge. Local 100 does not represent the players—the National Football League Players Association does. But anyone can file a ULP charge—the NLRB requires no standing.
The charge also raises the interesting question of whether kneeling for the national anthem constitutes concerted activity protected by the NLRA, even under the NLRB’s currently broad standards. The NLRA protects “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” but only as it relates to terms and conditions of employment. Protesting social and racial injustice, broadly speaking, does not relate to the players’ working conditions, particularly where none of the players have claimed poor treatment by the NFL or their teams. But if players kneel to support other players (such as Colin Kaepernick) or to protest Jones’s new rule, such conduct could earn the protection of the Act.
On October 3, 2017, California Governor Jerry Brown signed into law Senate Bill 306, dramatically limiting an employer’s right to defend itself against allegations that it retaliated against an employee for making wage claims. In short, the law makes it far easier for employees and the California Labor Commissioner to obtain injunctive relief in retaliation cases, potentially requiring employers to reinstate discharged employees before an employer can fully defend itself against the allegations. The law takes effect January 1, 2018.
The law allows the Labor Commissioner or an employee to obtain injunctive relief against an employer based on a mere showing that “reasonable cause exists to believe a violation has occurred.” That’s a far lower burden of proof than a court’s typical standard for injunctive relief, which requires a showing that (1) the employee will suffer irreparable harm, (2) the employee will likely succeed on the merits, and (3) the employee’s interests outweigh the employer’s. The law also requires a court considering a request for an injunction to evaluate “the chilling effect on other employees.”
Other features of the new law that restrict employers’ rights include:
- Authorizing the Labor Commissioner to seek injunctive relief before concluding its own investigation;
- Permitting the Labor Commissioner to initiate investigations on its own, “without a complaint,” if the suspected retaliation occurred during the adjudication of a wage claim or a field inspection, or in instances of immigration-related threats;
- Allowing the Labor Commissioner to issue its own citations ordering reinstatement or back pay, without going to court;
- Placing a heavy burden on the employer to challenge Labor Commissioner citations, including requiring the employer to post a bond equal to the total amount of back pay allegedly owed.
Key Takeaways: The new law increases the need for California employers to make careful, well-reasoned, and thoroughly-documented disciplinary and discharge decisions. Notably, when employees make wage claims, they often also simultaneously engage in protected concerted activity under Section 7 of the NLRA. Given the potential overlap between the Labor Commissioner’s jurisdiction and the NLRB’s jurisdiction, employers facing legal action under the new law should consider whether an NLRA preemption defense applies.
House Republicans recently introduced H.R. 3441, a bill that aims to clarify and narrow the definition of “joint employer” under the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA).
The bill proposes the following uniform definition: