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2023 is in full swing. While everyone is abuzz about ChatGPT taking over the world, a newly divided Congress is finding its sea legs and state capitols are eyeing new regulations. Agencies and courts have taken up hot-button labor and employment matters, from noncompetes to biometric privacy. And not to be left out, the NLRB and the FTC have taken aim at employment contracts and severance agreements.

What will this all mean for employers? There are challenges for sure, but with planning they are manageable. We take a look at the top trends that will shape labor and employment law in the months to come.

DISCRIMINATION AND EEO ISSUES

More enforcement

Given trends from last year and public messaging from top enforcers, we anticipate an increase in harassment and discrimination litigation, particularly for class-based claims.

In its recently released 2022 Financial Report, the EEO signaled its plan to strengthen enforcement around systemic discrimination. The Agency heralded several victories including obtaining $29.7 million in monetary benefits for victims and collecting over $28 million in damages from 10 lawsuits asserting systemic discrimination last year. Enforcers also recovered a combined $403 million from the Agency’s top 10 settlements of 2022 (nearly doubling rates from the previous year). Highlights include an $18 million settlement with Activision Blizzard over sexual harassment and pregnancy-bias claims and $8 million from Circle K stores over disability and pregnancy discrimination issues.

Even more, the EEOC’s enforcement hike has considerable support from the White House. The President’s proposed budget requests $481 million for the EEOC – a 5.7% increase over its 2023 allocations. While this money is unlikely to materialize in full, it does underscore the growing political support for anti-discrimination and harassment enforcement.…

Continue Reading Employment Laws Shaping 2023

There’s been another flip-flop at the National Labor Relations Board. The target this time? Severance agreements.

During the Trump administration, the NLRB issued a set of rulings that generally allowed employers to include confidentiality and non-disparagement clauses in severance agreements. These provisions are used to protect an employer’s reputation from disgruntled former staff while safeguarding the more sensitive details of the agreement (such as compensation) from public view. Last week, the Board wiped the deck with these Trump-era decisions. Now, any such clause may be deemed unlawful if it too broadly restricts a worker’s rights, including to speak out against their former employer.

What does this mean for severance agreements past and future? We take a look.…

Continue Reading Talking About The NLRB’s New Rulings on Confidentiality, Non-Disparagement, and Severance Offers

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?