In a guidance memorandum last week, NLRB General Counsel, Peter Robb, announced a change designed to help employers avoid litigating unfair labor practice charges filed by unions or union-represented employees who have filed grievances regarding the same underlying dispute. This is an update to the approach created in the 2014 Babcock decision. If you have unionized workforces, read more details here. The definition of Protected Concerted Activity was just tightened to a more limited scope by the NLRB, making a distinction between “protected group action” and “limited individual action.” No longer can a statement by a single individual, even if in front of other employees, be regarded as protected. See here and here for details as to what does or does not qualify. Although the NLRB adopted a new standard for determining appropriate bargaining-union composition, it is still possible to end up with a micro-unit. In other words, the difference between an “overwhelming community of interest” (ala Speciality Healthcare) and the new “community of interest” standard is still a little bit like shifting sand. Analysis used to determine community of interest include factors such as departmental organization, skills and training, job duties, functional integration, contact, interchange, terms and conditions of employment, and supervision. A proposed joint-employer rule is still expected soon, as NLRB chairman, John Ring, rejected a request by two Democratic lawmakers to scuttle the proposal. In fact, due to the partial government shutdown, the board recently established an email address at regulations@nlrb.gov for the electronic submission of public comments on the rulemaking. The deadline for comments is January 28. The deadline for comments replying to comments is February 11. This couldn’t come at a better time, as a recent D.C. Circuit decision did little to quell the uncertainty around joint-employer standards. The ruling was so confusing that conflicting news stories appeared, some saying the court had upheld Browning-Ferris, and others saying the court had “nixed” it! We won’t try to parse the court testimony in this story overview – go here for more details. In another perspective of the joint-employer/independent contractor discussion, gig economy companies like Uber and Lyft are having to keep a wary eye on lawmakers – not at the federal level but at the state level. California is a bellwether for what may be to come in many states, especially where the lawmakers lean to the left. The states of Washington and New York are following a similarly restrictive path. Republican controlled states like Texas and Florida have headed in the opposite direction, but it looks to be a significant tug-of-war.
