Atlanta Opera, Inc. to the NLRB, and the board invited public comment “addressing whether the board should reconsider its standard for determining the independent contractor status of workers.” It’s likely a safe bet that the current majority will do so, and one might expect the board also to declare that alleged misclassification is an unfair labor practice in its own right. Other changes will likely include an attempt to return to the expansive joint employer standard under the board’s 2015 Browning-Ferris decision, which would require a regulatory rulemaking. The decision held that employers engaged in numerous common business relationships – such as franchising and contracting – could potentially be liable for employees they did not actually employ and workplaces they did not actually control.


During the Trump administration,


the board issued a final rule establishing a straightforward standard for joint employment that effectively reversed the Browning-Ferris decision. In June 2022, the current NRLB revealed through its semiannual regulatory agenda that it intended to address joint employer status under the NLRA via the rulemaking process. Another potential effort could


force employers to allow union organizers greater access to their workplaces and email systems. In 2014, the NLRB issued a decision in Purple Communications, Inc., in which the Democrat majority held that Section 7 of the NLRA protects employees’ use of email systems at work to communicate about organizing and related activity. In 2019, the Republican majority reversed Purple Communications, saying it “impermissibly discounted employers’ property rights in their IT resources while overstating the importance of


The decision held that employers engaged in numerous common business relationships – such as franchising and contracting – could potentially be liable for employees they did not actually employ and workplaces they did not actually control.


those resources to Section 7 activity.” One can expect the current board to revisit that issue.


In addition to the NLRB, the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) also have signaled their interest in scrutinizing training repayment policies that require employees to stay with the company for a certain period of time following training programs. In March 2022, the Treasury Department issued a report on “The State of Labor Market Competition” in which it asserted that such policies reduce employees’ bargaining and earning power. The head of the CFPB made similar comments at a conference not long thereafter.


Labor unions have asked the FTC


to address the same issue, which it may do as part of an overall review of non-compete agreements. Last year, the FTC hosted a workshop titled “Making Competition Work: Promoting Competition in Labor Markets,” at which the agency “explore[d] recent developments at the intersection of antitrust and labor, as well as implications for efforts to protect and empower workers through competition enforcement and rulemaking.” More recently, the FTC signed a


memorandum of understanding with the NLRB to address “key issues such as labor market concentration, one-sided contract terms, and labor developments in the ‘gig economy,’” such as the use of independent contractors.


Legislative Prospects Lastly, looking to Congress, chief


among organized labor’s goals in the new administration has been the passage of the so-called “Protecting the Right to Organize” (PRO) Act, which actually passed the House of Representatives in 2019 and again in 2021, when a new Congress convened. The PRO Act would codify a slew of lopsided policies designed to force more people into unions, including many if not all of the topics above. However, with the extremely narrow majority in the Senate, the PRO Act so far has not garnered enough support to pass, but there is no doubt that President Biden would sign the bill if it did.


That would completely reshape labor law in this country, and what happens with the upcoming mid-term elections will determine its prospects. Meanwhile, the Biden administration will work assiduously to deliver on the president’s pro-union promises through any other means it can.


Fall 2022 25


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40