LABOR AND EMPLOYMENT: NLRB's Pro-Union Policy Overhaul as Employee Voice Becomes Controversial Issue

Although legislative gridlock on significant labor law reform will likely continue, the Biden administration, led by the National Labor Relations Board, is already well on its way towards upending current labor law and policy with significant consequences for employers.

Expansion of employee speech rights: As we enter another divisive election year, employees are increasingly likely to express their views in the workplace. This could challenge employers’ ability to maintain harmony and could impact productivity and company culture. Concurrently, the NLRB is likely to take an expansive view of employees’ rights to engage in “protected concerted activity” such that broader social and political expressions and protests—such as wearing BLM or anti-BLM apparel—would be protected speech under the NLRA.

Employee unrest and uptick in union activity: Following close on the heels of “Striketober,” unions scored a win organizing Starbucks employees in Buffalo and received a second chance at representing employees at an Amazon facility in Alabama. This nationwide undercurrent of employee unrest and union aggressiveness, coupled with historically high public support for unions, will embolden the Biden administration to pursue legal and policy reforms that have so far been on hold due to the pandemic and other priorities.

Policy upheaval at the NLRB: The new Democratic majority NLRB will make waves in the coming year, with potential changes outlined in a memo released by General Counsel Jennifer Abruzzo this past fall. The Board has already moved forward on several of these priorities, including:

• Permitting unions to carve out smaller units within an employer’s workforce, which makes organizing campaigns easier;
  
  
• Allowing the Board to seek consequential damages for employer violations, enabling a deeper reach into employer pockets for losses beyond wages (e.g., missed mortgage payments);
  
  
• Proposed rules restoring the Obama rules on joint employer liability where a company has only indirect or potential control over the employees of its franchisees, suppliers, contractors and other third parties; and
  
  
• Increasing scrutiny on severance agreements, specifically the conditions attached to such agreements such as confidentiality provisions.

Bold initiatives in White House Labor Task Force Report: Earlier in the year, the Biden administration signaled its commitment to unions by forming a Task Force on Worker Organizing and Empowerment. The Task Force, which includes all Cabinet members, is charged with finding ways to facilitate union organizing without enacting new legislation. The original deadline of October 2021 has long passed so the report is expected early this year. The recommendations will likely include executive orders imposing labor and employment regulations on federal contractors, including, potentially:

• Requiring employers to remain neutral during union organizing campaigns,
• Requiring recognition of unions without private ballot elections,
• Paid leave, and
• Imposing restrictions on arbitration agreements.

It is worth noting that the use of executive authority to implement such requirements may be significantly impacted by a Supreme Court decision on the vaccine mandate for federal contractors. The Court could establish principles limiting the use of executive authority to implement labor and employment policy changes in general.

HR Policy helping CHROs meet the new challenges: Now more than ever, HR leaders need a strategic understanding of the framework governing labor relations in the U.S. Building on our legacy of leading labor relations education, we’re launching Fundamentals of U.S. Labor Relations in February 2022. This one-of-a-kind seminar is designed for senior HR professionals (including CHROs) who need a strategic understanding of U.S. labor relations. Senior leaders from other disciplines, such as Finance and Operations, may also benefit from the program.