NLRB Decisions on Joint Employer, Protected Speech, Independent Contractors
Explore recent National Labor Relations Board (NLRB) decisions regarding joint employer rules, protected speech, and independent contractor classification. Learn about key cases, rulings, and implications for employers and workers in the labor landscape.
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Presentation Transcript
ORGANIZE DAVID ROSENFELD CAREN SENCER WEINBERG, ROGER & ROSENFELD
Anything New & Helpful? DAVID ROSENFELD CAREN SENCER WEINBERG, ROGER & ROSENFELD
Roadmap Joint Employer Lion Elastomers (Protected Speech) Atlanta Opera (Independent Contractor) Stericycle (Handbook Rules) Intertape Polymer (restores Wright Line) Miller Plastic Products (Scope of Protected Concerted Activity) Wendt Plastics and Tecnocap (Unilateral Change) What Are We Waiting On? Not Just the NLRB
Joint Employer Rule Reserved or indirect control 7 factors Different from FLSA Rule
Lion Elastomers, LLC, 372 NLRB No. 83 (2023) The scope of protected speech is situational Reverses General Motors, 369 NLRB No. 127 (2020) Returns to the specific test for the situation
The Atlanta Opera, Inc., 372 NLRB No. 95 (2023) Less people are independent contractors than GC Robb thought; totality of the circumstances and not one factor as key Overrules SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019) Returns to FedEx Home Delivery, 361 NLRB 610 (2014) ( FedEx II )
Independent Contractor NLRB DOL Extent of control Any opportunity for profit or loss a worker might have; (1) 1. Distinct occupation or business (2) The financial stake and nature of any resources a worker has invested in the work; 2. Kind of occupation (3) Skill (4) The degree of permanence of the work relationship; 3. Who supplies the tools (5) Length of employment (6) The degree of control an employer has over the person s work; 4. Method of payment (by time or the job) (7) Part of the regular business of the employer Whether the work the person does is essential to the employer s business; and (8) 5. What the parties think they are doing A factor regarding the worker s skill and initiative (9) 6. The business of the principal (10)
Stericycle, Inc., 372 NLRB No. 113 (2023) Handbook rules that are not narrowly tailored to advance legitimate and substantial interests infringe on employees Section 7 rights and are illegal Overturns Boeing, Co., 365 NLRB No. 154 (2017) as amended by LA Specialty Produce Co., 368 NLRB No. 93 (2019) Returns (mainly) to Lutheran Heritage Village Livonia, 343 NLRB 646 (2004)
Intertape Polymer Corp., 372 NLRB No. 133 (2023) Restores the traditional Wright Line test Overrules Tschiggfrie Properties, Ltd., 368 NLRB No. 20 (2019) Also applies Lions Elastomers, LLC, 372 NLRB No. 83 (2023) which overruled General Motors, 369 NLRB No. 127 (2020) Whether speech is protected is tested against the right test for the situation, not across the board, not related to EEOC or outside standards
MILLER PLASTIC PRODUCTS, INC., 372 NLRB No. 134 (2023) The standard for determining if individual action was protected and concerted Factual question Overturns Alstate Maintenance, LLC, 367 NLRB No. 68 (2019) Returns to Meyer Industries II, 281 NLRB 882 (1986) Reinforces WorldMark by Wynhdam, 356 NLRB 765 (2011)
Wendt Corp., 372 NLRB No. 135 (2023) Employer may not make unilateral changes during first contract negotiations or claim a past practice defense from events prior to certification Overrules (a portion) of Raytheon Network Centric Systems, 365 NLRB No. 161 (2017)
Tecnocap, LLC, 372 NLRB No. 136 (2023) Employer is not privileged to make unilateral changes after contract expiration, even if they could have made the change while the CBA was in effect. The management rights clause and other discretionary rights expire. Overrules (the other portion) of Raytheon Network Centric Systems, 365 NLRB No. 161 (2017) Returns balance to longstanding precedent NLRB v. Katz, 369 U.S. 736 (1962) and restores the 2010 DuPont cases.
Still to Come Rulemaking Captive Audience Ex-Cell-O Issues on Appeal, But Good Law For Now
Not NLRB Supreme Court Chevron 10(j) Glacier Concrete 1stAmendment FTC and Non-Compete OLMS Enforcement Fun State Laws
