The NLRB and the Wage & Hour division of the Department of Labor announced a memorandum of understanding, creating a mechanism to share information and refer charges. It appears the main emphasis is to focus on employee misclassification – meaning another attack on the joint employer standard.
Although the NLRB Democrats are failing to budge on calls for NLRB members Gwynne Wilcox and David Prouty to recuse themselves from the joint employee discussion due to their former direct ties to the SEIU, from the other side of their mouth they are considering vacating several decisions due to Republican board member’s tenuous ties to CVS and ExxonMobile.
The NLRB signaled it is intending to shift once again on the standards around facially neutral work rules. LA Specialty Produce (2019) divided work rules challenges into three separate categories, expanding on the balancing test created by Boeing (2017). Now the board is looking at tightening the constraints, making it possible that most employers will likely find their employee handbooks in violation of the revised rules. Briefs may be filed with the Board on or before March 7th.
It appears that the NLRB is actively pursuing confidentiality and non-disparagement agreements attached to severance packages in Merger and Acquisition cases. The board has filed ULP charges in several cases asserting that such agreements are not lawful.
In a related case, the board has asked for briefs in an apparent effort to restrict the use of confidentiality agreements related to arbitration proceedings. The U.S. Supreme Court in the 2018 case Epic Systems Corp v. Lewis said requiring arbitration of legal claims as a condition of employment does not violate the National Labor Relations Act.
The high court did not address the validity of confidentiality clauses, which the Trump-era NLRB subsequently said were legal. The board has asked whether it should reject those rulings and find that those provisions could improperly discourage workers from filing unfair labor practice charges with the NLRB.
NLRB General Counsel Jennifer Abruzzo is admonishing the board to include “emotional harm” in factoring make-whole remedies for unlawful terminations or other unfair labor practice rulings.
