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The General Counsel of the National Labor Relations Board (NLRB), Jennifer A. Abruzzo, issued guidance on March 22, 2023, about the NLRB’s McLaren Macomb, 372 NLRB No. 58, decision from February 21, 2023, which reinstated a limit on the confidentiality, non-disclosure, and non-disparagement clauses that employers may include in severance agreements with most of their lower-level employees.[1]  While not law, the General Counsel’s guidance is intended to address the uncertainty among employers regarding what language is deemed acceptable to include in severance agreements and what language may create liability under the National Labor Relations Act (NLRA) following McLaren Macomb.[2]

The McLaren Macomb decision specifically held that employers may not condition severance on the employee’s waiver of rights protected by the NLRA and that agreements between employers and employees that restrict employees from engaging in activity protected by the NLRA or from filing unfair labor practice (ULP) charges with the NLRB, helping other employees in doing so, or assisting during the Agency’s investigatory process are unlawful. The NLRB observed that the employer’s offer is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement. It also provided that the conduct of an employer is irrelevant to assessing the lawfulness of a severance agreement, and the plain language of the severance agreement alone can constitute a violation.  While the Maclaren Macomb decision has been described as a return to the standard applied in earlier cases, many speculate that it indicates that the NLRB intends to take a broader view of how severance agreements infringe on employees’ rights under Section 7 of the NLRA.Continue Reading NLRB Returns to Longstanding Position Limiting Use of Confidentiality, Non-Disclosure, and Non-Disparagement Clauses in Employee Severance Agreements

Since August 2021, three of the five members of the National Labor Relations Board (“NLRB” or “Board”) have been appointed by Democratic presidents, including two members appointed by President Biden. Earlier this year, the Democratic majority announced in Stericyle, Inc., 371 NLRB No. 48 (Jan. 6, 2022), that it was requesting briefing on whether…

The National Labor Relations Board (“NLRB”) announced yesterday that all currently scheduled representation elections – including vote-by-mail elections—have been postponed until at least April 3, 2020 because of the ongoing COVID-19 crisis.  Here is what the NLRB had to say:

Due to the extraordinary circumstances related to the COVID-19 pandemic, the National Labor Relations Board today approved the suspension of all representation elections, including mail ballot elections, for the next two weeks effective immediately, through and including April 3, 2020. 
Continue Reading NLRB Postpones All Representation Elections Until At Least April 3

The National Labor Relations Board (the “Board”) recently issued a decision in UPMC Presbyterian Shadyside that reverses longstanding Board precedent and holds that employers no longer have to allow nonemployee union representatives access to public areas of their property unless (1) the union has no other means of communicating with employees or (2) the employer…

In a significant win for employers, the United States Supreme Court has issued a landmark decision upholding the use of class action waivers in employment arbitration agreements.  This ruling permits employers across the country to enforce individual arbitration agreements with employees, even where the agreement requires an employee to pursue legal claims on an individualized…

It might appear that in some years, the National Labor Relations Board (the Board) issues a series of decisions just as the year comes to a close, but it is not because the Board wants to give out holiday presents (or, from the employer’s perspective for the past several years, multiple lumps of coal).  Rather…

In the wake of the election results, the question on everyone’s mind now is: What impact will President-Elect Trump have on employers?  Trump has thus far given few details on his thoughts on labor and employment.  But with Republicans maintaining control of Congress, employers could see a lot of changes in the next couple of years.  Our experts weighed in with their thoughts on how different areas of labor and employment law may be affected.
Continue Reading Labor & Employment Law Under President-Elect Trump

The NLRB recently reversed course again to allow temporary employees provided by a staffing agency to join regular employees in a single bargaining unit without the consent of the employer or the staffing agency. Miller & Anderson, Inc., 364 NLRB No. 39 (2016).

The Board Flip Flops

Historically, unions seeking to organize employees directly employed by an employer (called a “user employer” by the Board) alongside temporary employees provided by a staffing agency (“provided employees”) in a single bargaining unit were required to obtain consent of both the user employer and the staffing agency.

In 2000, however, the Clinton Board overturned that rule to eliminate the consent requirement, allowing employees to form one bargaining unit as long as they shared a community of interest and the employer and the staffing agency were considered “joint employers.” M. B. Sturgis, Inc., 331 NLRB 1298 (2000).  Four years later, the Bush II Board decided Oakwood Care Center, 343 NLRB 659 (2004), and overturned the Board’s decision in Sturgis to again require consent.
Continue Reading NLRB Reverses Course Again: Organizing Temporary Workers Just Got Easier

As we’ve previously blogged, for several years the Obama Administration has been on a calculated campaign to increase unionization in America. Federal agencies, particularly that National Labor Relations Board, have been systematically changing longstanding rules to make it more likely that unions can prevail in election representation campaigns.  We previously blogged about two earlier key components of this campaign: the revised rules from the NLRB approving “quickie” union elections on dramatically shortened time frames; and even earlier efforts to allow unions to designate “micro-units,” increasingly small groups of employees so that unions may narrowly focus their organizing efforts.  Now, in the twilight of the Obama Administration, the final effort in the campaign to increase unionization has just been announced: the Department of Labor has finally issued its long threatened regulations that would dramatically narrow the scope of confidential advice employers can receive when dealing with union organizing campaigns.
Continue Reading The Third Shoe Drops: The Department of Labor Issues Revised “Advice” Regulations

Employers probably are aware of the “quickie” election rules implemented earlier this year by the National Labor Relations Board (“the Board”), but they may not have considered all of the rules’ consequences. With as little as 15 to 20 days to respond to an organizing drive, employers must be prepared to educate employees about the risks and consequences of union representation on very short notice. While many employers have prepared as we described here, some still may not be ready to answer questions from workers and explain the consequences of unionizing the workplace. Responding to workers’ questions about a union without being properly prepared can make a mess of things, even if employers speak the truth.

A recent case from the Sixth Circuit Court of Appeals upheld a Board decision that provides a good reminder that managers must be extremely careful even when speaking the truth to workers during an organizing campaign.

Be Careful What You Say

When a car dealership in Illinois learned that some employees were stirring up interest in unionizing, the plant’s general manager met with workers to discuss unions and answer their questions. The manager answered their questions honestly, but his answers still violated labor law, according to the Board and the Sixth Circuit.Continue Reading What Employers Can and Cannot Say During a Union Organizing Campaign