NLRB Enforcement Under Biden Administration: Micro-Unit Standards, Email Communications, Joint Employer Test

Potential Impact of Passing the Protecting the Right to Organize Act

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Wednesday, February 24, 2021

Recorded event now available

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Course Materials

This CLE course will provide labor and employment counsel with an update on the Biden administration's proposals to enforce the National Labor Relations Act. The panel will discuss the impact of the NLRB's decisions and strategies for employers--both non-union and union--to comply with their legal obligations.

Description

The Biden administration and subsequent appointees to the NLRB will revisit several prior administration NLRB decisions, particularly those that overturned Obama-era determinations. President Biden has already replaced the General Counsel, which signals that change is imminent.

The Biden platform states its intention to reinstate Specialty Healthcare, overruled in 2017. In Specialty Healthcare, the Obama NLRB endorsed the concept of "micro-units" when evaluating potential negotiating units. Under this standard, the NLRB presumes a negotiating unit to be composed of employees who perform the same job at the same facility whether or not other employees share an interest with that unit. Organizing efforts can then target smaller groups of employees, allowing a union to expand its representation.

Additionally, the Biden NLRB may reinstate Purple Communications, overturned in 2019. Purple Communications states that employees have a protected right to use work email accounts to organize regardless of employer prohibitions. Reinstating this decision would be a boon for union organizers and require employers to change their email use rules.

Look for the joint employer test to be quickly reinstated. The Browning-Ferris Industries decision expanded the joint employer standard by holding that an employer's status as a joint employer hinges on the employer's reserved right to control employees, directly or indirectly. Employees may assert their right to negotiate with their direct employer and its contracting company, increasing negotiations across various industries, particularly franchise-based.

Finally, Protecting the Right to Organize Act of 2019 (PRO Act) is among the most significant labor bills since the Taft-Hartley Amendments of 1947, and it may pass in the current political climate. Among other things, the PRO Act would substantially alter the test for determining whether an independent contractor is an employee by codifying the California Department of Labor's "ABC" test.

Listen as our authoritative panel of labor and employment attorneys discusses these and other likely changes to the NLRB. The panel will address pitfalls and best practices for employers to comply with the NLRA in coming years.

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Outline

  1. Proposed NLRB enforcement activity under Biden administration
  2. Best practices for union and non-union employers
  3. Anticipated NLRB future action

Benefits

The panel will review these and other noteworthy issues:

  • What are the most likely NLRB case changes under the Biden administration?
  • What freedom do employers have to restructure their business and commercial relationships?
  • What questions remain for union and non-union employers following the anticipated changes to the NLRB?
  • What steps should non-union and union employers anticipate to maintain NLRA compliance?

Faculty

Bucking, James
James W. Bucking

Partner
Foley Hoag

Mr. Bucking represents corporations and other employers in union disputes, complex employment litigation and other...  |  Read More

Sirbak, Joseph
Joseph P. Sirbak, II

Member
Cozen O'Connor

Mr. Sirbak represents employers before the NLRB in representation and unfair labor practice proceedings, negotiates...  |  Read More

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