March 29, 2022
The National Labor Relations Board (NLRB)—the agency that enforces a federal labor law that protects the rights of employees and employers—is currently reviewing several hot topics that may have a significant impact on the workplace.
The board enforces the National Labor Relations Act (NLRA), a federal law that "grants employees the right to form or join unions" and "engage in protected, concerted activities to address or improve working conditions or refrain from engaging in these activities."
The NLRA applies to private-sector workplaces even if they are not unionized, noted Jennifer Abruzzo, the NLRB's general counsel. She was speaking on a panel with board members John Ring and Gwynne Wilcox at the Society for Human Resource Management (SHRM) Workplace Policy Conference 2022 on March 28 in Washington, D.C.
The board has five members who are appointed by the president for a five-year term, and one member's term expires each year. The general counsel is also appointed by the president (for a four-year term).
Robert Boonin, an attorney with Dykema in Detroit, told SHRM Online that legal doctrine under the NLRA tends to swing based on the president's political ideology. "But those changes are typically slow, since changes usually aren't made until a case on the topic reaches the NLRB—and that could take years."
Abruzzo, who was appointed by President Joe Biden, has noted several case areas under the Trump board that she deemed to be doctrinal shifts away from previous board precedent. These include cases involving employer handbook rules, confidentiality provisions in separation agreements and the definition of "independent contractor."
Ring, who was appointed by President Donald Trump and formerly served as the board's chair, noted that these tend to be areas of disagreement between Republican- and Democratic-led boards.
Look for Opportunities to Weigh In
James Banks Jr., SHRM's general counsel, noted during the panel discussion that the NLRB occasionally requests briefs from interested members of the public (including worker groups, employers and HR professionals), in addition to the parties to a case, to weigh in on key issues.
So what does the board do with the responses it receives? "When the board goes out for briefing to the public and asks for input," Ring said, "what we get back is critically important to our consideration of the issues."
The current board reads everything, he noted, adding that the board values the insights it receives into possible changes to precedent and how it will affect particular industries or the workplace as a whole.
He said the current board majority is reviewing several issues that have a significant impact on the workplace. For example, the board asked for briefing earlier this year on whether to change its approach to evaluating employer rules, policies and handbooks.
Under the Trump administration, the board issued a decision that afforded employers more deference for their handbook policies related to confidentiality, civility and social media. The current board, however, may want to return to a prior standard that placed limits on employer handbook policies that could be "reasonably construed" by workers to limit their right to engage in protected concerted activity under the NLRA.
"So that's just one to watch," Ring said.
The board also asked for input earlier this year on its standard for determining whether workers are independent contractors or employees and whether the board should continue to follow the independent-contractor standard set out in a 2019 decision during the Trump administration or possibly return to a 2014 Obama-era standard in its entirety or with modifications.
The 2019 test considers a variety of factors, including the relationship the company and individual think they are creating and how much control the company has over the person's work. The 2014 test focused on whether a worker is economically dependent on a company.
Ring doesn't think the 2019 test needs to be changed. Abruzzo, however, thinks the definition of "employee" should be broadly construed.
The period for filing briefs has closed in these cases. Ring said the briefs they received are "very helpful." The board is working through them and hopes to get decisions out shortly.