The recent BMW Manufacturing Co. decision continues the Trump NLRB trend to more leniency in evaluating company handbook policies, stemming from the 2017 Boeing Co. ruling. In BMW, the board reversed an ALJ finding, giving the green light to the following Standards of Conduct outlined in the handbook:
- requiring employees to “[d]emonstrate respect for the Company” and “[n]ot engage in behavior that reflects negatively on the Company”;
- instructing employees to “[n]ot use threatening or offensive language”;
- prohibiting use of “personal recording devices…[and][unapproved] use [of] business recording devices within BMW MC facilities”; and
- requiring that any information the employer had not released to the general public must be treated as confidential.
Good news for now, but it’s likely the Biden board will begin to unravel the more lenient attitude the board has taken toward employer handbook provisions.
A December 7th ruling is a good reminder that an employee’s reasons for engaging in workplace advocacy or other protected activity —however arguably self-motivated—are immaterial to the objective determination of whether the conduct warrants protection under Section 7 of the Act. In this very complicated case, the employee in question was terminated by the employer for evading investigatory questions and lying. Even though the employer claimed that his conduct outside of the scope of protected activity justified their action, the board ruled in favor of the employee.
On January 6th the Department of Labor issued its final rule on who is an independent contractor, finally bringing needed clarity to this issue. Unfortunately, the Biden administration has already asked federal agencies to freeze proposed and pending regulations.
The rule reaffirms an economic-reality test to determine whether an individual is in business for himself or herself—an independent contractor—or is economically dependent on a business for work. Someone in the latter category would be an employee covered by the FLSA.
Under the final rule, two core factors are integral to determining whether someone is an independent contractor:
- The nature and degree of control over the work.
- The worker’s opportunity for profit or loss based on initiative and investment.
Three other factors that may serve as additional guideposts in the analysis are:
- The amount of skill required for the work.
- The degree of permanence of the working relationship between the worker and the potential employer.
- Whether the work is part of an integrated unit of production.
The actual practice of the worker and the business is more relevant than what may be contractually or theoretically possible.
Labor lawyers are mixed over their belief whether the new rule will withstand meddling from the new administration.
President Biden wasted no time in putting his stamp on the direction of labor law. On his first day in office, Biden fired NLRB General Counsel Peter Robb, and sent notice to Robb’s replacement, Assistant General Counsel Alice Stock, asking her to resign or face the same fate.
The President then selected Boston Mayor Marty Walsh as his Labor secretary. Walsh is a former union official, and has been accused of involvement in extortion while in his role as the head of the Boston Building and Construction Trades Council. Biden pointed to California Labor Secretary Julie Su for the role of deputy secretary under Walsh. Su has been criticized for failing to prevent rampant unemployment fraud and lengthy delays in processing of claims, which may make her confirmation anything but a shoo-in.
The President then wielded the sword of executive order to begin stripping many of the efficiency reforms enacted within the federal government by the prior administration. Biden minced no words in Section 1 of the order, stating “It is also the policy of the United States to encourage union organizing and collective bargaining.” (One wonders where in the Constitution that came from!) In addition to the revocation of prior orders and the disbandment of the Interagency Labor Relations Working Group, the order including a push to have all agency heads and their subordinates engage in collective bargaining and a move to bump the minimum wage for all federal employees to $15/hour.
Biden also rescinded President Trumps Executive Order 13950, which limited diversity and inclusion training for federal contractors. A preliminary injunction had been issued against the Order, so federal contractors are now released from the uncertainty of their actions related to such training.
There is plenty of speculation around how the labor policy landscape may evolve. Below are a few articles that list a host of possibilities. It seems too early to attempt a synthesis, so we’ll just list the articles for your perusal:
- From The National Law Review: Significant Workplace Changes in Store under the Biden Administration
- From JDSupra: The Biden Era Of Labor Law Change – The Shift To Organized Labor
- From The Jacobin: Organized Labor Shouldn’t Expect Much From President Joe Biden
