New NLRB General Counsel Signals Major Shift Away From Obama-Era Board Policies

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From JDSupraMary Cate GordonDaniel V. JohnsDenise Keyser, and Brian D. Pedrow report that the new General Counsel, Peter B. Robb,of National Labor Relations Board (NLRB) issued Memorandum 18-02 memo on December 1st, rescinding many of initiatives of the Obama-era.  They write:

In addition, the Obama-era GC memos and initiatives rescinded by last week’s memo include those addressing:

  • the ability of employers to withdraw recognition from an established union;
  • various workplace rules;
  • inclusion of front pay in Board settlements;
  • deferral to the grievance and arbitration process; and
  • misclassification of independent contractors as an automatic violation of the NLRA.

We are now at the beginning of what is expected to be an era of dramatic change in NLRB law. As decisions begin to come down reflecting these changes, employers should be prepared to review and revise handbooks and policies, retrain supervisors and bargainers on the new guidance, and alter course on employer-employee interactions in both union and non-union workplaces.

Read the full story at New NLRB General Counsel Signals Major Shift Away From Obama-Era Board Policies

Memorandum 18-02 states:

the following initiatives set out in Advice memoranda are no longer in effect:

– seeking to extend Purple Communications to other electronic systems (e.g., internet, phones, instant messaging) if employees use those regularly in the course of their work

– seeking to overturn the Board’s Tri-cast doctrine regarding the legality of employer statements to employees, during organizing campaigns, that they will not be able to discuss matters directly with management if they select union representation

– seeking to overturn Oil Capitol and put the burden of proof on respondent to demonstrate that a salt would not have remained with the employer for the duration of the claimed backpay period

– arguing that an employer’s misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1) (but Regions should submit to Advice any case where there is evidence that the employer actively used the misclassification of employees to interfere with Section 7 activity)

[emphasis added]

This change reduces the liability of employers who misclassify workers as independent contractors.  Misclassification alone will not be considered a violation of the National Labor Relations Act (NLRA) but an employer is still liable if it classifies workers as independent contractors as a way to interfere with employees’ protected activities under the NLRA.


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