Gibbons Law Alert

Gibbons Law Alert

Category: Labor

What Employers Should Know About Biden’s AI Executive Order

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Posted in Discrimination / Labor

On November 7, 2023

On October 30, 2023, President Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The sweeping Executive Order sets out standards for safe and secure uses of AI with an emphasis on privacy protections, the promotion of innovation and competition, avoiding discrimination and bias, and supporting workers. The Executive Order requires principles and best practices to be established by the Secretary of Labor within 180 days of the Executive Order. The principles and best practices will provide guidance for employers to “mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” The principles and best practices must address the following, • job-displacement risks and career opportunities related to AI, including effects on job skills and evaluation of applicants and workers • labor standards and job quality, including issues related to the equity, protected activity, compensation, health, and safety implications of AI in the workplace • implications for workers of employers’ AI-related collection and use of data about them, including transparency, engagement, management, and activity protected under worker-protection laws Agencies will likely adopt the Secretary of Labor’s guidelines, as appropriate and consistent with applicable laws. We can also expect guidance on AI workforce development, as well as employee monitoring, which would ensure that workers whose...

The NLRB’s Ongoing Shift Toward Employee-Friendly Standards

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Posted in Employment Agreements / Labor / Restrictive Covenants

On August 18, 2023

The labor law landscape is constantly in flux as changes in presidential administrations continue to play a significant role in the development of rulemaking and decisional law at the National Labor Relations Board (NLRB or the “Board”). Over the past several months, various NLRB decisions and guidance memorandums have tipped the scales further in the employee’s favor, requiring employers to re-think their current policies and agreements to avoid the pitfalls created by these recent decisions. Employee Handbook Policies The NLRB’s August 2nd opinion in Stericycle, Inc., 372 NLRB No. 113 (2023), found an employee policy unlawful because, from the employee’s perspective, it had a “reasonable tendency” to discourage employees from exercising their rights under the National Labor Relations Act (NLRA). This decision is a departure from the previous standard where the Board examined, “the nature and extent of the potential impact on NLRA rights, and [] legitimate justifications associated with the rule.” Now a policy is unenforceable if an employee could reasonably interpret it to restrict conduct protected under the NLRA, i.e., if the policy was enacted in response to such protected conduct, or if the policy, in practice, limits rights under the NLRA. In other words, the Board’s primary concern is whether an employee believes they cannot avail themselves of the concerted activities protected...

NLRB Reaffirms Test Set Forth in Republic Aviation With Respect to Employees’ Right to Display Union Insignia Under the NLRA

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Posted in Labor

On October 17, 2022

Recently, in Tesla, Inc., the National Labor Relations Board (NLRB) held that Tesla had violated the National Labor Relations Act (NLRA) by banning workers from wearing pro-union attire, and reaffirmed the long-standing precedent established by the Supreme Court in Republic Aviation Corp. and its progeny, holding that when an employer attempts to impose any restriction on a worker’s right to display union insignia, the employer must prove “special circumstances” justifying the restriction. By way of background, Tesla manufactures electric vehicles at a facility in Fremont, California, where they are assembled by production associates in General Assembly (“GA”). Tesla’s team-wear policy requires its production associates to wear black cotton shirts with the company logo or plain black T-shirts, along with black cotton pants. In the spring of 2017, there was a union organizing campaign, during which the associates began to wear black shirts with pro-union insignia as opposed to team wear. Shortly after the workers had started wearing the pro-union apparel, Tesla began to strictly enforce its team-wear policy, which it had not done previously and which prohibited workers from wearing the black pro-union shirts rather than the required team-wear shirts. Pro-union insignia, however, was not banned completely, as the associates were permitted to wear union stickers on their team-wear shirts. The union’s organizing campaign ultimately...

OSHA Issues Long-Awaited COVID Guidance and Emergency Temporary Standard

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Posted in Labor

On June 28, 2021

On June 10, 2021, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) finally issued its long-awaited update to its COVID-19 workplace safety guidance, setting forth best practices for all employers as employees return to the physical workplace after a lengthy absence. The same day, OSHA issued an Emergency Temporary Standard (ETS)—pursuant to the DOL’s rule-making authority—establishing mandatory procedures for “covered healthcare employers.” We summarize the obligations and recommendations imposed on healthcare and non-healthcare employers below.

Reopening Considerations for New Jersey: What Employers Need to Know About OSHA

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Posted in Family Leave / Labor

On June 17, 2020

As New Jersey begins to reopen under Governor Murphy’s reopening plan and more employees prepare to return to their physical workplaces, employers must continue to navigate a myriad of federal, state, and local guidance regarding how to best protect their workforces and prevent the spread of COVID-19. While many employers, particularly those outside of the construction industry, may not be used to regular dealings with the United States Department of Labor Occupational Safety and Health Administration (OSHA), all employers must consider OSHA’s COVID-19 Guidelines as they prepare reopening plans. While OSHA’s reopening guidance is advisory in nature, employers should remember that the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause (Section 5(a)(1)) requires all employers to provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm, which could include exposure to COVID-19. Thus, employers should be careful to ensure that their reopening plans comply with OSHA’s guidelines (along with more stringent state or local guidelines if they exist). The OSHA Guidelines categorize risk of worker exposure to COVID-19 from low to very high and lay out specific measures of protection that are recommended at each risk level. Employers should consult this portion of the Guidelines for specific guidance. The Guidelines also outline more...

The National Labor Relations Act and COVID-19

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Posted in Labor

On May 4, 2020

One law that has not received much attention in the midst of COVID-19 is the National Labor Relations Act (NLRA). The NLRA is a federal law that governs labor relations for most private sector employers in the United States. The statute is enforced and interpreted by the National Labor Relations Board (NLRB), which is headquartered in Washington, DC and has regional offices throughout the country. The NLRA provides employees with various rights, including the right to engage in protected concerted activity, the right to join and to refrain from joining a labor union, and the right to have a union collectively bargain their terms and conditions of their employment. As recent developments demonstrate, both union and non-union employers should keep the NLRA in mind when conducting their workforce planning. Protected Concerted Activity The NLRA protects employees who engage in protected concerted activity. Generally speaking, this means that employees have the right to band together to demand better working conditions with or without a union. Concerns that employees raise about health and safety issues at work, which very well may include COVID-19-related concerns, could constitute protected concerted activity entitling employees to protection. See, e.g., Contemporary Cars, Inc. v. NLRB, 814 F.3d 859 (7th Cir. 2016) (concern employees raised with manager about coworker’s failure to wash hands...

New Jersey Call Center Jobs Act: Potential Headaches for Employers

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Posted in Labor

On February 14, 2020

On January 21, 2020, New Jersey Governor Phil Murphy signed into law the New Jersey Call Center Jobs Act (“Act”). A copy of the Act may be found here. The new law, designed to provide protection to call center employees in the State, includes strict notice requirements along with penalties for New Jersey employers relocating a call center overseas, or transferring call center operations out of state. Under the Act, New Jersey call centers that employ at least 50 full-time employees or at least 50 workers who in the aggregate work 1,500 or more hours per week (excluding overtime) must maintain staffing levels capable of handling at least 65% of the employer’s customer volume of telephone calls, emails, or “other electronic communications” (“customer communications”) when measured against the previous six month average volume of communications originating from New Jersey callers or locations. If a call center’s staffing level falls below the required minimum levels, the employer must immediately notify the Commissioner of Labor and Workforce Development (“Commissioner”). In addition, any employer that relocates a call center, or transfers one or more of its operations comprising at least 20% of the call center’s total volume of customer communications as measured against the previous 12 month average volume to a foreign country, must notify the Commissioner 90 days...

Recent NLRB Decision Helps Employees, Hurts Unions

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Posted in Labor

On March 11, 2019

On March 1, 2019, the National Labor Relations Board (NLRB) issued a decision in United Nurses and Allied Professionals (Kent Hosp.), 367 NLRB No. 94 (2019) addressing the rights of individuals in collective-bargaining units who are subject to union-security requirements and elect not to be union members. The Board held that unions cannot charge these individuals for lobbying activities because such activities are not needed for unions to perform their statutory representational duties (i.e., collective-bargaining, contract administration, and grievance adjustment). Additionally, the NLRB held that unions must provide these individuals with independent verification that the financial information it shares with them about union expenditures to justify their non-member charges has been properly audited. The decision came on the heels of a memorandum issued by the Board’s General Counsel, which addressed unions’ duties to notify employees in collective-bargaining units of their right to be non-members, pay reduced charges, and revoke dues authorization checkoffs on their specific anniversary and/or contract expiration dates. The union in Kent Hosp. represented a group of registered nurses. Some of those nurses resigned their union membership and objected to the union charging them for lobbying activities. Such individuals are sometimes referred to as Beck objectors in light of a decision by the Supreme Court of the United States in Commc’ns Workers v....

NLRB Vacates Recent Joint Employer Decision

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Posted in Labor

On March 12, 2018

On February 26, 2018, the National Labor Relations Board (NLRB) rescinded its recent 3-2 decision in Hy-Brand Indus. Contractors, Ltd., 365 NLRB No. 156 (2017), which had restored the traditional standard for determining when multiple entities are joint employers under the National Labor Relations Act (NLRA). The Board’s action stemmed from a determination by the NLRB’s Designated Agency Ethics Official that one of the Board Members who voted in favor of the Hy-Brand decision should not have participated in that decision. The vacatur of the Hy-Brand decision is a setback for the business community. As we previously reported, the Hy-Brand decision overruled the NLRB’s controversial joint employer decision in Browning-Ferris Indus. of Cal., Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) and restored the decades-old standard that required an entity to actually exercise direct and immediate control over another entity’s essential employment conditions and terms to be a joint employer. In Browning-Ferris, the Board decided that two or more entities could be jointly liable under the NLRA if one of the entities merely reserves the right to indirectly control essential employment conditions and terms of another entity. Once again, this funky joint employer standard as set forth in Browning-Ferris is NLRB law. In a memorandum dated February 9, 2018, the Board’s Inspector General, David P....

President Trump Nominates Fifth Board Member to Round Out NLRB

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Posted in Labor

On January 19, 2018

Earlier this month, President Donald Trump nominated management-side labor attorney, John F. Ring, to the National Labor Relations Board (NLRB). This is a significant nomination because, if Mr. Ring receives Senate approval, the Board will once again be poised to revisit pro-union actions that the NLRB took under the prior administration. This is good news for the business community. Last month, a fully-constituted five member Board took several actions that began a much anticipated releveling of the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions. Last month’s actions included decisions restoring traditional standards for deciding what constitutes an “appropriate collective bargaining unit” and when two or more entities are “joint employers.” These changes were welcomed by the business community because they provide a more balanced approach to deciding these issues. Shortly after the NLRB’s actions last month, the term of then-Chairman Philip A. Miscimarra expired, leaving one seat at the Board open and the NLRB presumably split two-to-two on a host of additional controversial pro-union actions taken by the Board under the prior administration. (Those actions include the propriety of the NLRB’s “quickie” election rule and a decision giving employees a presumptive right to use their employers’ email systems for non-business purposes.) Two of the current Board Members, Mark Gaston Pearce and Lauren...

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