Mark Pearce

Mark Pearce, the former chairman of the National Labor Relations Board, has announced that he will not seek another term on the board.  A renomination by the Trump administration at the expiration of his last term in August of 2018 surprised many and irritated pro-business groups. Pearce’s nomination expired at the end of the year, and he announced this month that he has decided to head back to academia. The board remains at a 3-1 Republican majority at the moment.

The DOL addressed worker privacy protection in a recent OSHA ruling impacting employers of 250 or more. As stated by the January 24th bulletin:

By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

Worker privacy was again protected in a board ruling - this time in the case of a bargaining unit informant. When the union asked the employer to reveal the name of an informant in the case of a violation of a “family night” work stoppage, the employer refused. Although the board ruled that a summary of the information relayed to the employer by the informant should be disclosed, the privacy of the informant, and the list of supervisory personnel to whom the information was distributed, was inconsequential to the information request by the union.

The Obama NLRB was famous for ignoring context in the prosecution of alleged violations of board rules, particularly when its interpretation of the rules would favor Big Labor. The new board is moving back toward sanity. In a recent decision regarding unlawful interrogation, in the course of a conversation with a fired employee, the employer asked if the employee “had seen the organizer.” Although the General Counsel issued a complaint of interrogation, the ALJ and the NLRB affirmed that in the context of the situation, the question didn’t qualify as interrogation.

With the SuperShuttle decision of January 25th, the NLRB returned to its traditional definition of independent contractor status - a boon for employers. The move provides employers that make use of contingent workforces or franchisees with greater certainty regarding the employment status of their workforces.

According to an economic impact study by the International Franchise Association (IFA), the Obama-era joint-employer standard initiated by the Browning-Ferris decision of 2015 “has cost the American economy $33.3 billion per year, led to 376,000 fewer job opportunities and resulted in a 93% increase in lawsuits against franchise businesses.” Further action by the board to remedy this situation is expected soon.

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