An ideologically recalibrated National Labor Relations Board (“NLRB”) implemented an important right for labor unions who seek to organize a bargaining unit comprising less than a full complement of a location’s workers. Whether union organizers face significant opt-out rates among the workforce or there are other legitimate reasons to exclude portions of the employee complement, the path to unionization became much easier after the NLRB’s December 14, 2022 decision.

Who Needs to Keep Reading?

Any employer nationwide preparing for, concerned about, or currently involved in union organizing activity within their workforce. This decision will likely affect the strategies taken to combat organizing efforts and to contest them before the NLRB.

Continue Reading Ideologically Recalibrated NLRB Restocks Union Organizing Toolbox

A wave of labor strikes in October of 2021 led experts to dub the month “Striketober.” And this year, we saw the trend continue as companies across the nation faced a number of work stoppages through late-September and October. As the second Striketober comes to an end, we look at the general trends in labor organizing and what employers should expect in the months ahead.

First, the Supreme Court is poised to take action. The Court recently agreed to consider a case at the heart of the right to strike: Can employers sue unions in state court when strikes cause economic harm, such as destruction of property?

The case arises from a dispute between a cement company and its truck drivers in Washington state. Contract negotiations between the local Teamsters union and employer, Glacier Northwest, had broken down. In August of 2017, union leaders instructed drivers to bring their trucks back to the yard and strike. According to the company, the union intentionally timed this so that the concrete in the trucks had already been mixed, which could solidify in the drums and destroy them. The union countered that the trucks were left running so the concrete wouldn’t harden. Glacier Northwest sued the union to recover damages.

This will be the Court’s first major labor decision since 2018. If the judges side with the Glacier Northwest, it will likely open the door to more litigation between unions and employers when labor action causes economic harm to an employer. Be sure to look out for an alert when this case is decided.
Continue Reading The Supreme Court and Lessons from “Striketober”: What Should Employers Expect?

On September 7, 2022, the NLRB issued a notice of proposed rulemaking seeking to replace the Trump-era final joint employer rule, which provided that an employer would be considered a joint employer under the NLRA only where it exercised “substantial direct and immediate control” over the essential terms and conditions of another company’s employee.

President Biden just signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” known informally as the “Me Too” law. It becomes effective immediately, and amends the Federal Arbitration Act (FAA) to ban the mandatory arbitration of sexual assault and harassment claims.

What does the new law mean for the future of employment arbitration? Can employers still have any type of a mandatory arbitration program? The answers to these questions are not immediately obvious, but you can be assured that the Me Too Bill will make harassment claims more expensive and more complicated to resolve. It is also not a surety that the end of arbitration will be good for victims or potential plaintiffs.

What the law will mean for your business will depend on a number of factors, including where you are doing business (as mandatory arbitration is already prohibited in some states), and whether your company had a mandatory arbitration program in place for customers or employees. However, all businesses may see an uptick in harassment claims, as that often happens whenever there is a very public legal development in this area.

What does the Me Too law say?

The main provision of the law is short enough to reproduce here:

“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispose arbitration agreement or predispose joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

The terms “sexual assault dispute” and “sexual harassment dispute” are not confined to federal claims, but is any such claim as defined according to “applicable Federal, Tribal, or State law.”
Continue Reading The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration

Generally speaking, most healthcare employers would not think that their employed physicians are at risk for unionization. As opposed to interns and residents, who have experienced their own unionization push in the past several years, employed or “staff” physicians supervise nurses and other medical providers and direct the day-to-day operations of healthcare services.  They are regarded as “management” and part of leadership within most hospitals. Thus, many hospital administrators naturally assume that physicians are seen as “supervisors” under the law, and like other supervisors, would be barred from seeking to organize or join a union under the National Labor Relations Act. Doctors certainly should not be allowed to seek union representation, like their nurse colleagues, since the positions are fundamentally different. Simple, right?

Maybe not. One NLRB Regional Director recently reinforced the argument that physicians, and other highly-credentialed medical providers, are not supervisors simply by virtue of their position near the top of healthcare institution chain of command – and can in fact seek to organize. They could also be part of the same unit with other staff.  On January 21, 2022, in Piedmont Health Services, Inc. and Piedmont Health Services Medical Providers United, Case 10-RC-286648, the NLRB directed an election of a proposed bargaining unit consisting of physicians, nurse practitioners, certified nurse-midwives, and physician assistants. Supervisors are of course excluded from the proposed unit, but, as will be explained below, the NLRB in this case draws a clear line between what constitutes a supervisor when it comes to medical providers, and what does not.

Continue Reading Are Your Doctors Poised for an Organizing Push? A Recent NLRB Decision May Provide Some Incentive


During the Trump years, the National Labor Relations Board (meaning, the actual five-member Board in Washington, whose decisions drive interpretations of federal labor law) got a lot less friendly to organized labor, and a lot friendlier to employers. That meant a lot of things, including making it easier for unions to prove that two employers were really one “joint” employer, harder for employees to organize, and harder for employers to unilaterally change terms and conditions of employment without bargaining.

The Board is less like the lifetime-appointed Supreme Court and more like your new boss who doesn’t care how your old boss did things. That’s because Board members serve out fixed but limited terms—meaning that a new Presidential administration brings new Board members when the terms of existing Board members expire. While the Board claims to rely on its own precedents (and, to some extent, does), Board members are fundamentally political appointees, and their interpretations of labor law mirror the labor agenda of the Presidents who appoint them.

Enter Biden’s appointment of Gwynne Wilcox to the Board on May 26. Biden has not exactly been subtle about his labor policy agenda: as he announced the American Jobs Plan on March 31, he reminded us that he’s “a union guy. I support unions. Unions built the middle class. It’s about time they start to get a piece of the action.”

A piece of the action, indeed. Ms. Wilcox clearly knows what she’s doing when it comes to federal labor law, but what she’s doing is deeply informed by what she has done. She’s a dyed-in-the-wool union-side attorney from a law firm that exclusively represents unions, and from a position with one of the largest and most powerful unions in the Northeast, which is part of the SEIU.
Continue Reading The New NLRB: Protecting Workers from Their Own Employers?

For years, employee interest in unions has dwindled. But a pandemic, persistent income inequality and high unemployment—not to mention the most pro-union Presidential administration in generations—have all converged to flip that script.

5,800 workers at an Amazon warehouse in Bessemer, Alabama are currently voting whether to join a union in an election that runs through March 29th. The current unionization efforts have captured national attention and drawn support from both sides of the aisle, including Republican Senator Marco Rubio. A win in the election would be a major victory for the labor movement. Amazon is the second-largest private employer in the United States, and it has avoided unionization at all of its U.S. facilities up to this point. Is this recent unionization effort a reflection of a larger change brewing in the labor world?

Continue Reading Are Unions Primed for a Comeback?

Forget speculation about what is to come: the Biden administration has already acted to unravel the Trump legacy in employment and labor regulation—and to expand worker protections.

Join us on April 15, 2020 at 12:30 p.m. ET for a complimentary webinar, where we will take a deep dive into the regulatory changes immediately impacting your