Activity around the recently imposed Persuader Rule is picking up. The House Education and Workforce Committee lambasted the rule and scheduled hearings, while several groups filed suit. Other Republican lawmakers signed a letter asking the House Appropriations Committee to take action against both the DOL and the NLRB. It appears the chasm through which the “protected concerted activity” can be run through is widening by the day. A foul-mouthed rant against a client between employees in the restroom now qualifies. In another case, badmouthing the company and one of its owners over the company’s two-way radio system is also safe ground for disgruntled workers. In the effort to create the broadest possible interpretation of protected concerted activity, the NLRB continues to defy the courts, especially around class and collective action waivers. In the independent contractor vs. employee tug-of-war, it seems the courts will likely allow “ties” to go to the NLRB. In a recent decision, using the ten-factor tests set out in FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009), and Corporate Express Delivery Systems v. NLRB, 292 F.3d 777 (D.C. Cir. 2002), the D.C. Circuit Court of Appeals decided that if 5 of the 10 tests indicated employee status, the NLRB would win the argument.
NLRB General Counsel Richard Griffin
- the application of Purple Communications, 361 NLRB No. 126 (2014) to electronic systems other than email,
- the applicability of Weingarten principles in non-unionized settings,
- allegations that “English-only” policies violate the National Labor Relations Act,
- whether the misclassification of employees as independent contractors violates the NLRA.
The second group involves matters that involve “difficult legal issues or the absence of clear precedent,” and include such issues as:
- the rights of contractor employees to have access to the property where they are working to communicate with coworkers or the public,
- whether novel forms of disruptive conduct, such as coordinated “shopping,” excessive use of loudspeakers, or corporate campaigns, constitute violations of the NLRA,
- the need to harmonize the NLRA with local, state or federal statutes or where potential or actual overlapping jurisdiction with other federal agencies exists
Dennis Walsh
