Responding in part to the nature of the post-COVID-19 remote workplace, NLRB GC Jennifer Abruzzo has released a memo on employers’ use of electronic monitoring and automated management in the workplace. The memo also directs NLRB Regions to submit to the Division of Advice any cases involving intrusive or abusive electronic surveillance and algorithmic management that interferes with the exercise of NLRA Section 7 rights.

Citing concerns over the interference of labor organizing and bargaining communications, Abruzzo looks to broaden the scope of the NLRA. In some cases, she urges, the NLRB should find employers presumptively violate the NLRA if their technology has a tendency to interfere with or prevent employees from engaging in protected activity. Importantly, the scrutiny called for in the memo applies to all employers subject to the NLRA, not just those employers with a unionized workforce.

Some level of remote work is relatively common nowadays. Many employers, however, are struggling to engage with employees, maintain productivity, ensure security of IT systems, and otherwise manage their workplace. Of course, monitoring employees in the “workplace” is not new and not limited to remote workers. Workplace monitoring technologies, however, have advanced considerably in recent years, as noted in the memo:

It is well documented that employers are increasingly using new technologies to closely monitor and manage employees. In warehouses, for example, some employers record workers’ conversations and track their movements using wearable devices, security cameras, and radio-frequency identification badges. On the road, some employers keep tabs on drivers using GPS tracking devices and cameras. And some employers monitor employees who work on computers—whether in call centers, offices, or at home—using keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.

NLRB precedent prohibits employers from unlawfully preventing discussions related to organizing or bargaining. Employers also cannot retaliate against employees for exercising such activities. For example, NLRA Section 7 protects employees’ right to engage in concerted organizing activities. Similarly, Section 8 prohibits employers from interfering with, restraining, or coercing employees exercising such rights. Likewise, certain surveillance practices are unlawful under the NLRA, such as photographing employees engaging in protected activities.

Abruzzo requests that the Board adopt a broader framework on the use of electronic management and monitoring tools. While she acknowledges the “Board must reach an accommodation between competing employer interests and employee rights,” the memo urges the Board to find that employers presumptively violate Section 8 “where the employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activated protected by the Act.”

Abruzzo suggests that employers establish “narrowly tailored” practices to address “legitimate business needs” as to whether the practices outweigh employees’ Section 7 interests. If the employer establishes that its narrowly tailored business need outweighs those rights, the GC nonetheless will “urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains,” unless the employer can establish special circumstances.

The impact on employers that use monitoring and automated management technology can be significant if the NLRB implements Abruzzo’s suggestions.

Abruzzo also reaffirmed the inter-agency approach between the NLRA and other federal agencies, including the Department of Justice, Equal Employment Opportunity Commission, and the Department of Labor to address new cases involving technology in the workplace. Indeed, the regulation of monitoring and automated management technology is growing. For example, the EEOC released a technical assistance document addressing the potential pitfalls of using decision-making software, including artificial intelligence, and compliance with the federal civil rights laws that agency enforces.

As employers work to manage a new and changing workplace, and adopt technologies to help in the process, they will need to evaluate these technologies beyond their primary purpose and consider how they may affect compliance with a range of other obligations.

Please contact your Jackson Lewis attorney to determine how this memo may impact your workplace rules and policies and to answer any other questions you may have.

  1. The National Labor Relations Board has proposed reversing the current joint-employer standard, which took effect on April 27, 2020. The new rule would revert to the Obama-era standard for determining joint-employer status under the National Labor Relations Act. Under the proposed rule, entities may be deemed joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” (Read full article here.)

Noting the employer did not have an employee code of conduct policy prohibiting the use of derogatory language, the National Labor Relations Board (NLRB) held an automotive dealership violated the National Labor Relations Act by wrongfully terminating a union employee for calling the owner a derogatory term during negotiations. Cadillac of Naperville, Inc., 371 NLRB No. 140 (Sept. 22, 2022).

The Board explained that the employer failed to demonstrate it would have terminated the employee absent the alleged protected activity and that such derogatory language was common in the employer’s workplace.

In Cadillac, unionized employees commenced a strike after negotiations for a successor collective bargaining agreement stalled. The employee in question, a member of the union’s negotiating team, got into a verbal altercation with the employer’s owner and yelled a derogatory term at the owner. The employer terminated the employee for insubordination.

To decide whether an employee was disciplined for engaging in protected activity, the NLRB applied its mixed motive Wright Line test. The Board first found the general counsel (the Board’s prosecutorial authority) established a prima facie case of retaliation under Wright Line. It held the employee engaged in protected activity, the employer knew of the activity, and the activity was a motivating factor in the disciplinary action.

The NLRB then determined the employer failed to satisfy its burden of demonstrating it would have terminated the employee regardless of the employee’s protected concerted activity. The NLRB concluded the employee’s behavior was “the utterance of a single derogatory term in response to a profane threat of physical force from the owner…” and use of such language by both parties was common. Additionally, the employer did not produce evidence of any policy prohibiting such conduct to rebut the inference of an improper motive. As a result, the Board found the employer violated the Act.

The Board’s recent decisions applying the mixed motive Wright Line standard remind employers that they should promulgate, maintain, and consistently enforce clear and narrowly tailored work rules and policies. Doing so will help an employer establish it would have taken the same action against an employee regardless of purported protected concerted or union activity should discipline later be challenged.

The current NLRB’s recent decisions underscore its willingness to expand the scope of protected employee conduct, while requiring employers to demonstrate more rigorous proof of available defenses. Employers may contact their Jackson Lewis attorney should they have questions.

Through its decisions, the five-member National Labor Relations Board interprets the National Labor Relations Act. These decisions set rules that regulate unionized and non-unionized workplaces, including the relationship between employers and organized labor and the rights of employees to engage in concerted activities. With President Joe Biden’s appointees taking their seats, the Board’s Democratic majority is expected to make changes that would likely benefit organized labor. (Read full article here)

Labor Day 2022 comes at an optimistic time for U.S. labor unions. Prior to the COVID-19 pandemic, representation petitions and elections were declining steadily. However, National Labor Relations Board (NLRB) election filings have increased by 58% in the first nine months of 2022, compared with the same time period in 2021, according to a Board press release.

Many organizing campaigns are being led by younger workers leveraging social media to gain mass followings and attract national attention at a rapid pace. The use of social media has helped these new generations of workers to mobilize support quickly across other employers. Such campaigns frequently grab the attention of workers across all industries, leading to a wave of unionization efforts as more workers look to be part of the movement and increasingly see unionization as a path to social justice.

This summer, the country has seen workers at high-profile employers petition to unionize for the first time. For example, employees at a Chipotle Mexican Grill in Lansing, Michigan, voted to be represented by the International Brotherhood of Teamsters (IBT), making Lansing the chain’s first location of nearly 3,000 to do so. The uptick in unionizing also is affecting other non-traditional union targets. For instance, on September 1, 2022, architects at a private firm in New York organized one of the first private sector unions in the industry.

Further changing the landscape, the Biden NLRB has issued decisions that will have far-reaching impact on both unions and employers. In fact, the Board made a potential precedent-shifting change when it announced a proposed rule that would broaden the test of what entities constitute a “joint employer.” The proposed rule, if it takes effect, will almost certainly increase the number of employees deemed to be jointly employed by two or more employers. Additionally, on August 29, 2022, the Board overturned long-standing precedent by ruling a company cannot enforce dress codes or uniform policies to the extent such policies interfere with employees’ right to display union insignia in any way, unless an employer demonstrates “special circumstances.”

However, despite an increase in union campaigns and a Biden NLRB, not all workers may jump on the trend. According to a Gallup poll, public support for unions is at 71%, the highest it has been since 1965. Only 7% of private sector workers, however, currently belong to a union. Further, the Gallup poll reported that 58% of non-union workers are “not interested at all” in actually joining a union. This shows a majority of workers recognize that unions may be unnecessary in the enlightened workplace of an employer of choice.

Additionally, according to a Bureau of Labor Statistics report, compensation in non-union jobs is outpacing compensation in union-represented jobs. The total wage and benefit costs for private-sector non-unionized employers was 3% higher than unionized employers for the 12-month period ending June 2022. From 2018 to June 2022, non-union employee compensation has risen dramatically while union employee compensation has remained steady.

It is more important than ever to focus on being an employer of choice. Please speak with your Jackson Lewis attorney about your organization’s labor relations goals and strategies.

The California Court of Appeal for the Second Appellate District upheld the construction industry collective bargaining agreement exemption to the Private Attorneys General Act (PAGA) in Oswald v. Murray Plumbing and Heating Corporation.

Labor Code Section 2699.6

Under Labor Code section 2699.6, construction employees who perform work under a valid collective bargaining agreement (CBA) in effect any time before January 1, 2025, that meets specific requirements, are not covered under PAGA. To be exempted from PAGA, the CBA must expressly provide for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and for the employee to receive a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate, and the agreement must do all of the following:

(1) Prohibit all of the violations of this code that would be redressable pursuant to this part and provides for a grievance and binding arbitration procedure to redress those violations;

(2) Expressly waive the requirements of PAGA in unambiguous terms; and

(3) Authorize the arbitrator to award any and all remedies otherwise available under PAGA.

Read the full article on Jackson Lewis’ California Workplace Law Blog.

1. Compensation in non-union jobs is outpacing compensation in union-represented jobs. A Bureau of Labor and Statistics report indicates the total wage and benefit costs for private-sector nonunionized employers was 3% higher than unionized employers for the 12-month period ending June 2022. Overall, total wage and benefit costs for private-industry firms increased 5.5%, but non-unionized companies accounted for most of the bump. In fact, pay for non-union workers rose 6%—the highest since the early 2000s—compared to 3.4% for union workers. Read more here.

On August 29, 2022, the National Labor Relations Board (NLRB) issued a decision finding that absent special circumstances, employers may not enforce dress codes or uniform policies that interfere with employees’ right to display union insignia. 371 NLRB No. 131 (Aug. 29, 2022). The NLRB’s decision is a return to a more restrictive precedent for analyzing whether an employer’s dress code or uniform policy unlawfully interferes with employee rights under the National Labor Relations Act (NLRA).

Background

Since the U.S. Supreme Court’s 1945 decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945), the NLRB generally has determined that even if work rules and uniform policies are facially neutral, employers cannot prohibit the wearing of all union buttons and insignia unless the employer showed “special circumstances” for the prohibition. This standard changed during the Trump Administration, however, when the Trump Board held in Wal-Mart Stores Inc., 368 NLRB No. 146 (2019) that employers may maintain facially neutral dress codes. Under Wal-Mart, an employer only had to show “special circumstances” if its policies explicitly prohibited wearing union apparel or insignia. As a result, the “special-circumstances” test applied only when an “employer completely prohibited union insignia,” and restrictions could be deemed lawful depending on certain employer interests.

The Decision

In a 3-2 split along party lines, the Board overturned Wal-Mart and now returns to the pre-Trump analysis under which facially neutral work rules may restrict the display of union insignia only if the employer shows “special circumstances” justifying the prohibition. Such special circumstances include “when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees.”

The Board stated, “when an employer interferes in any way with its employees’ right to display union insignia, the employer must prove special circumstances that justify its interference.” The decision shows that any type of ban or restriction on union insignia, absent special circumstances, may violate the Act unless the rule is necessary to “maintain production or discipline.”

Implications

An employer’s prohibition of an employee’s display of union insignia on their uniform or apparel is presumed to be unlawful. As a result of this heightened burden, employers will need to establish “special circumstances” warranting interference, even if such restriction or limitation is part of a neutral uniform policy and does not restrict union insignia entirely.

The decision highlights the numerous changes under the Biden Administration, as the more union-friendly Board seeks to limit perceived infringement on protected speech. Accordingly, employers may need to revisit their uniform or apparel policies and the reasons behind them in order to withstand Board scrutiny. Employers should contact their Jackson Lewis attorney to determine how the ruling affects them and what to be mindful of when enforcing dress codes.

The National Labor Relations Board clarified its rerun election procedures in cases of uncontested election misconduct. Dynamic Concepts371 NLRB No. 117 (July 22, 2022). After losing an election to represent the employer’s workers, the union filed objections alleging unlawful employer election conduct. The employer agreed to a rerun election, but the parties could not agree on stipulated election agreement language setting the rerun election terms.  Read more…

Strikes have been in the news recently. Employers faced with a strike, or a possible strike, often wish to know their legal options, including whether they may seek injunctive relief. The short answer is that federal law prohibits courts from enjoining employees’ exercise of their right to lawfully strike. However, courts may enjoin unlawful strike conduct, depending entirely on the facts of the labor dispute. This is illustrated in Warrior Met Coal Mining, L.L.C. v. United Mine Workers of America International, et al., No. CV-2021-900285.00 (Ala. Cir. Ct., Tuscaloosa Cnty. Oct. 27, 2021 ). There, an Alabama state court judge took a relatively unusual action in a violent labor dispute: temporarily prohibiting all picketing at the employer’s properties.

Courts have limited injunctive authority in labor disputes, with specific differences between state and federal laws. Federal law prescribes rigid procedural requirements for issuing an injunction in a private sector labor dispute. Under federal law, courts are prohibited from enjoining the following (among others): (i) striking or refusing to work in protest; (ii) becoming a union member; (iii) paying or withholding unemployment benefits, insurance, money, or things of value to a person participating in a labor dispute; (iv) providing legal assistance to those involved in a labor dispute; (v) picketing or other public displays of support for or opposition to labor practice; (vi) peacefully assembling in public or private; and (vii) agreeing to or urging others to engage in or refrain from any of these activities. See 29 U.S.C. § 104. However, a strike may be unlawful if it has an unlawful objective or if unlawful means are employed. Unlawful objectives include inducing or engaging in a strike for secondary purposes, striking for jurisdictional or work-assignment purposes, and striking for recognition of a union as bargaining agent under certain conditions. Unlawful means include sit-down strikes, minority strikes, partial strikes, work slowdowns, and picket line misconduct or violence, among others. Courts may also enjoin strikes that are in contravention of a no-strike agreement, or in some circumstances work stoppages over disputes subject to a grievance and arbitration procedure in a collective bargaining agreement.

When an employer seeks injunctive relief in federal court prohibiting any of the above labor activity, it must show why the conduct at issue should be enjoined. A court can issue an injunction only where it finds: (i) the unlawful acts will continue unless restrained; (ii) substantial and irreparable injury will occur if the action is not enjoined; (iii) the balance of hardships between the parties favors the injunction; (iv) there is no adequate remedy at law; and (v) public officers are unable to furnish adequate protection to protect complainant’s property. See 29 U.S.C. § 107. Injunctions are not granted lightly.

Despite the onerous federal requirements, employers may have the option to seek an injunction in state courts if strikers engage in unlawful conduct. States can use their police powers to regulate behavior and enforce order within their territory to protect the health, safety, morals, and general welfare of their inhabitants. State courts can issue injunctions prohibiting unlawful conduct during a labor dispute to protect the public without enjoining the labor dispute itself.

Employers may seek injunctions in state court for conduct such as mass picketing, violence, threats of violence, property damage, blocking or attempting to block ingress or egress of vehicles at employer’s facilities, and acting recklessly on public roads, as they are areas of traditional state concern not generally subject to preemption principles. For example, in Warrior Met a state court judge issued a temporary restraining order prohibiting the union and striking employees from picketing outside Warrior Met’s properties. The judge issued the order based on video evidence showing picketers attacking non-strikers, personal vehicles, property, and uninvolved community members and interfering with company operations. While state courts still rarely issue injunctions relative to labor disputes, they have broad authority when labor activity poses a threat to the public’s health and safety.

Lawful strikes and picketing cannot be enjoined; but, where a strike or picketing includes dangerous or threatening conduct, there may be possible grounds for injunctive relief. Of course, such unlawful conduct does not occur in most labor disputes.

For more information about injunctions related to labor disputes, please contact a Jackson Lewis attorney.