November 19, 2021
NLRB Chair Lauren McFerran and Member John Ring discussed several notable upcoming labor law changes, including those on handbook rules and whether certain offensive speech constitutes protected concerted activity, in our most recent Future Workplace Policy Council Fall Conference webinar. In the panel that followed, American Water Vice President, Chief Labor, Employment & Commercial Counsel Pam Richardson noted, “These upcoming changes make it very challenging to run a business as there are so many other changes happening—employers are craving some stability.”
Chair McFerran noted “There should be a default presumption of mail-in ballots for the duration of the pandemic,” while expressing support for electronic voting. Member Ring put forward a different view, saying, “historic numbers show that mail-in ballots show 20% less participation, which is troubling if our goal is to franchise as many employees as possible.”
Several labor law areas awaiting the “right” case: Following NLRB General Counsel Jennifer Abruzzo’s memo outlining her priorities and Democrats holding a 3–2 majority, it is only a matter of time before several areas swing back in the direction of the Obama Board. Chair McFerran and Member Ring discussed, among other areas, determining whether an employee has been unlawfully discharged under the National Labor Relations Act for making abusive or offensive statements and worker classification issues. On the latter, Chair McFerran noted, “Telling someone they’re not an employee when they are is telling them they have no rights under the Act. This would obviously have a chilling effect on protected concerted activity.”
More restrictive approach to employer handbook and workplace rules: Noting McFerran’s position and General Counsel Abruzzo’s recent memo, Member Ring noted, “We are going to be back to making handbook policing decisions very quickly—flyspecking and splitting hairs on employer handbook rules.”
“Precedent doesn’t seem to mean anything anymore—you can’t rely on what was decided in the past,” noted Ms. Richardson in the following panel discussion with former NLRB Member and General Counsel Ron Meisburg, Special Counsel at Hunton Andrews Kurth, and Steve Bernstein, Regional Managing Partner at Fisher & Phillips. The panel was moderated by HR Policy Senior Labor and Employment Counsel Roger King.
The panel discussed an ambitious agenda of upcoming labor law changes, including the revival of the Joy Silk doctrine to permit unions to obtain recognition by card checks. They noted the case would place the burden on employers to establish why they may not recognize a union – an exceedingly difficult standard for employers to meet.
On December 1, 2021, EEOC Chair Charlotte Burrows and Commissioner Keith Sonderling will join us to discuss the EEO implications of using artificial intelligence in the employment context, the importance of guidance as companies navigate the COVID pandemic, EEO-1 data collection, and other issues that raise questions for employers as they continue to pursue diversity and inclusion as a business imperative. You can find a full conference agenda and registration information for the FWPC Fall Conference Discussion Series here.