Author: John C. Romeo

The NLRB’s Ongoing Shift Toward Employee-Friendly Standards

The labor law landscape is constantly in flux as changes in presidential administrations continue to play a significant role in the development of rulemaking and decisional law at the National Labor Relations Board (NLRB or the “Board”). Over the past several months, various NLRB decisions and guidance memorandums have tipped the scales further in the employee’s favor, requiring employers to re-think their current policies and agreements to avoid the pitfalls created by these recent decisions. Employee Handbook Policies The NLRB’s August 2nd opinion in Stericycle, Inc., 372 NLRB No. 113 (2023), found an employee policy unlawful because, from the employee’s perspective, it had a “reasonable tendency” to discourage employees from exercising their rights under the National Labor Relations Act (NLRA). This decision is a departure from the previous standard where the Board examined, “the nature and extent of the potential impact on NLRA rights, and [] legitimate justifications associated with the rule.” Now a policy is unenforceable if an employee could reasonably interpret it to restrict conduct protected under the NLRA, i.e., if the policy was enacted in response to such protected conduct, or if the policy, in practice, limits rights under the NLRA. In other words, the Board’s primary concern is whether an employee believes they cannot avail themselves of the concerted activities protected...

NLRB Reaffirms Test Set Forth in Republic Aviation With Respect to Employees’ Right to Display Union Insignia Under the NLRA

Recently, in Tesla, Inc., the National Labor Relations Board (NLRB) held that Tesla had violated the National Labor Relations Act (NLRA) by banning workers from wearing pro-union attire, and reaffirmed the long-standing precedent established by the Supreme Court in Republic Aviation Corp. and its progeny, holding that when an employer attempts to impose any restriction on a worker’s right to display union insignia, the employer must prove “special circumstances” justifying the restriction. By way of background, Tesla manufactures electric vehicles at a facility in Fremont, California, where they are assembled by production associates in General Assembly (“GA”). Tesla’s team-wear policy requires its production associates to wear black cotton shirts with the company logo or plain black T-shirts, along with black cotton pants. In the spring of 2017, there was a union organizing campaign, during which the associates began to wear black shirts with pro-union insignia as opposed to team wear. Shortly after the workers had started wearing the pro-union apparel, Tesla began to strictly enforce its team-wear policy, which it had not done previously and which prohibited workers from wearing the black pro-union shirts rather than the required team-wear shirts. Pro-union insignia, however, was not banned completely, as the associates were permitted to wear union stickers on their team-wear shirts. The union’s organizing campaign ultimately...

Amendments to Pennsylvania’s Unemployment Compensation Act Bring New Notice Obligations and Temporary Relief for COVID-19 Related Unemployment Benefit Charges for Employers

In connection with the continuing challenges arising from COVID-19, Pennsylvania Governor Tom Wolf recently signed into law amendments to Pennsylvania’s Unemployment Compensation Law, which are included in Act 9 of 2020 (“the Act”). The Act imposes new notice obligations on employers and includes “emergency provisions” that relax eligibility and access requirements for individuals filing COVID-19 related unemployment benefit claims and, among other things, provide relief to employers for charges incurred under certain circumstances. Some key provisions of the Act are discussed more fully below. New Notice Requirements The Act adds a new section (206.1) to Pennsylvania’s Unemployment Compensation Law, requiring employers to now provide separating employees with notice about the availability of unemployment compensation, regardless of whether the employer is liable for payment of contributions to the state’s unemployment compensation system. Although the Act is silent about the required form of notice, it must include the following information: Availability of unemployment compensation benefits to workers who are unemployed and qualify for benefits; An employee’s ability to file an unemployment compensation claim in the first week that employment stops or work hours are reduced; Availability of assistance and information about unemployment compensation claims on the Pennsylvania Department of Labor and Industries, Office of Unemployment Compensation’s website – www.uc.pa.gov – or at the department’s toll-free number, which...

Pennsylvania Issues New Executive Order Mandating Additional COVID-19 Disease Control Measures

On April 15, 2020, the Secretary of the Pennsylvania Department of Health issued an order aiming to blunt the continued and expansive spread of COVID-19 throughout Pennsylvania (“Order”). The Order, which took effect on April 19, 2020, requires additional disease control measures to further protect workers and customers of any life-sustaining business (“Business”) that has remained open during the COVID-19 disaster emergency. The original list of Businesses can be found here, and includes companies such as healthcare service providers; restaurants offering carry-out, delivery, or drive-through services; food, medical equipment, and chemical manufacturers; and utility and telecommunication companies, among others. The Order requires any such Business, other than a healthcare provider, to implement certain social distancing, mitigation, and cleaning protocols. These measures are in addition to those included in Pennsylvania’s April 6, 2020 building safety measures executive order, which requires covered businesses to clean and disinfect high-touch areas in accordance with CDC guidelines in spaces accessible to customers, tenants, or other individuals, and maintain pre-existing cleaning protocols established in the facility for all other areas of the building, ensure the facility has a sufficient number of employees to perform the required cleaning protocols effectively and in a manner ensuring the safety of occupants and workers, and make sure that the facility has a sufficient number of...

Senate Approves Trump’s Pick for NLRB General Counsel

This week, the United States Senate approved President Donald Trump’s nomination of Peter B. Robb to be the next General Counsel of the National Labor Relations Board. The move is a key step toward releveling the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions by the prior administration, including its NLRB General Counsel. The job of General Counsel is a significant one at the Board. The General Counsel is responsible for investigating and prosecuting unfair labor practice cases and supervising the regional offices in their processing of cases. As a result, the General Counsel has control over the types of cases and legal theories that make their way to the NLRB for decisions. The prior General Counsel, Richard F. Griffin, Jr., interpreted the National Labor Relations Act in ways that subjected employers to labor law liabilities where none historically existed. This included arguing that individuals better classified as college students and independent contractors were statutory employees, neutral workplace policies were unlawful, and distinct entities in a business relationships were joint employers. Griffin’s term expired last month and Jennifer A. Abruzzo, the NLRB’s Deputy General Counsel, has been serving as the Acting General Counsel since that time. As a private practitioner, Robb has been critical of numerous actions by the prior administration,...

College Football Players Can Unionize Says NLRB Regional Director

Did you know that college football players are not “primarily students”? Well, not if the students are football players on regimented schedules, who receive grant-in-aid scholarships to play football from which their school profits, according to a Regional Director at the National Labor Relations Board. In a decision issued yesterday, the Regional Director concluded that Northwestern University football players who receive scholarships are statutory employees under the National Labor Relations Act, and, therefore, directed an election for the players to decide whether to unionize in light of a petition a union recently filed to represent them. The Regional Director relied upon the common law definition of an employee in rendering his decision, finding that: the school’s interest in the students initially stems from their football talents; letters the University sends them offering scholarships to play football (called tenders) are contracts; the school controls the players through rules and regimented workout and playing schedules; and the scholarships the players receive are compensation that cover living expenses. The Regional Director distinguished the case from Board precedent finding that graduate students are not statutory employees, by reasoning that football is unrelated to the students’ academics unlike the case involving the graduate students.