Photo of James A. Holt

James A. Holt

Subscribe to James A. Holt's Posts
Contact:Read more about James A. Holt

Recent years have shown a continued increase in unionization and organization activities within the American workforce, as measured by union representation petition filings with the National Labor Relations Board’s (NLRB).

The NLRB confirmed this upward trend at the close of FY 2024, which ended on September 30, 2024. According to the NLRB’s data, union election petitions increased by 27 percent over FY 2023, totaling 3,286 petitions filed. The data also shows that the number of union election petitions more than doubled the 1,638 petitions filed in FY 2021.Continue Reading Unionization activity continues to surge in the U.S.

As employers continue to monitor the legal challenges against the Federal Trade Commission’s (FTC) final rule banning most non-compete agreements, they should not overlook similar efforts by other federal agencies and/or state legislatures to limit and/or prohibit the use and enforcement of non-compete agreements between employers and employees.

To that end, the National Labor Relations Board’s (NLRB) has primed itself to take its own swing at non-compete agreements. On October 7, 2024, NLRB General Counsel Jennifer Abruzzo issued a 17-page memo focused on the use of overly broad non-compete agreements. It expands on her May 30, 2023 memo, in which she opined that non-compete agreements tended to chill an employee’s rights to engage in concerted activity protected under Section 7 of the National Labor Relations Act, including advocating for improved working conditions through concerted efforts to obtain employment with other employers or carry out concerted threats of resignation.Continue Reading The non-compete agreement showdown: After the FTC’s final rule setback, the NLRB gears up to tackle non-compete agreements

On April 29, 2024 – for the first time in more than twenty years – the EEOC issued its long-awaited updated Enforcement Guidance on Harassment in the Workplace. The updated guidance, which supersedes the EEOC’s decades-old guidance from the 1980’s and 1990’s, now addresses subjects arising in the modern workplace, including the rise of remote work, the #MeToo movement, and the U.S. Supreme Court’s  decision in Bostock v. Clayton County, 590 U.S. 644 (2020), in which the Court held that Title VII of the Civil Rights Act protects workers from discrimination based on their sexual orientation and gender identity. A few key updates that employers should be aware of include the following:  

Conduct in virtual environments

With the increase in virtual and remote work, the Guidance explains that conduct within a virtual work environment can constitute a hostile work environment. Stated differently, the existence of harassment and a hostile work environment is not limited exclusively to a physical workplace. To illustrate its point, the Guidance identified several example scenarios where harassment could exist in a virtual or remote workplace, such as sexist or ableist comments made during a video meeting or typed into a group chat, “racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting,” or “sexual comments made during a video meeting about a bed being near an employee in the video image.”Continue Reading EEOC issues long-awaited enforcement guidance on workplace harassment

Employers in all industries should take notice that efforts to unionize appear to be spiking in 2024.  Indeed, data made available by the National Labor Relations Board (NLRB) shows that, in just the first few months of the current fiscal year, the number of union representation cases, or so-call “R-cases,” filed with the NLRB is on a meteoric rise – indicating that recent trends with respect to union organization efforts may be amplifying.

This was predicted in our prior article about the NLRB’s decision in Cemex Construction Materials Pacific, LLC, which established a new framework for the union representation process. Under Cemex, when a union requests recognition based on a majority support of the employees to be in the bargaining unit, an employer must either: (1) recognize and bargain with the union; or (2) promptly file a RM petition to challenge the union’s claim of majority support by seeking an election, pursuant to Section 9(c)(1)(B) of the NLRA, unless the union has already filed a petition for a representation election pursuant to Section 9(c)(1)(A) of the Act. The time for the employer to act is limited, as it is generally held that the employer has only 14 days after the demand for recognition in which to file an RM petition.Continue Reading Employers take notice: Union representation petitions are spiking in 2024

In an exceptional development that could dramatically change collegiate sports in the United States, the Regional Director for Region 1 of the National Labor Relations Board (NLRB) recognized the fifteen players of the Dartmouth College men’s varsity basketball team as employees with a right to unionize under the National Labor Relations Act (NLRA), in a decision issued on February 5, 2024. As a result, the players are eligible to vote on whether they want to be represented by the Service Employees International Union, Local 560 for collective bargaining purposes. If a majority of the voting players vote in favor of the union, they will create the first-ever union of NCAA athletes.

The Dartmouth College decision signifies a shift by the NLRB. In 2015, the NLRB declined to exercise jurisdiction over a similar bid to unionize by Northwestern’s football team, thereby declining that opportunity to recognize student athletes as employees at that time. The opportunity was seized in the Dartmouth College decision, however, as the Regional Director distinguished the Northwestern decision – perhaps most notably, based on the fact that Dartmouth College competed in the Ivy League Conference, exclusively with other private schools that were subject to the NLRB’s jurisdiction, where Northwestern competed in the Big Ten Conference, in which every other school in the conference was a state-run institution that was not subject to the NLRB’s jurisdiction.Continue Reading NLRB’s recognition of Dartmouth College men’s basketball team as employees could change collegiate sports forever

The National Labor Relations Board (“NLRB”) issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. In the decision, the NLRB overruled the long-standing standard in Linden Lumber because, in the Cemex majority’s view, it was inadequate to…

On February 21, 2023, the National Labor Relations Board issued a landmark decision in McLaren Macomb that has the potential to seismically change how employers approach and manage employee separations that include severance packages. In response to this landmark decision and the impact it will have on many employers, Reed Smith’s Labor & Employment team…

Last week, the National Labor Relations Board signaled two additional areas in which it intends to pursue its labor-favorable agenda over the remainder of the 2022 year and beyond.

First, on October 31, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum stating her intention to zealously enforce the National Labor Relations Act (the “Act”) with respect to what she has called “intrusive or abusive electronic monitoring and automated management practices.”

Second, on November 3, 2022, the Board issued a proposal to roll back 2020 amendments to its election regulations with respect to so-called blocking charges.

Technology-based monitoring and surveillance

In her October 31 memorandum, the General Counsel expressed concern that “close, constant, surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under the Act.  The General Counsel specifically stated that electronic surveillance and automated systems can limit or prevent employees from engaging in protected activity, including conversations about the terms and conditions of their employment or of unionization.  She also claimed that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace.  This, the General Counsel speculated, “may prevent employees from exercising their Section 7 rights” from engaging in concerted activity anywhere and may lead to retaliation and discrimination on the basis of protected activity.  The memorandum goes on to provide a two-pronged approach towards dealing with these perceived threats to employees’ rights.Continue Reading NLRB aiming to take pro-labor action in the areas of technology-based monitoring and surveillance and blocking charges

Employers routinely strive to find innovative ways to recruit, retain, and manage top talent. Proponents of artificial intelligence (AI) advocate that it can be a powerful tool for such purposes given that AI can be used to collect and analyze massive amounts of candidate and employee data in many different ways and in a fraction of the time needed by human analysts. By way of example, AI may be used in the hiring process to analyze qualifications or mine data from resumes and other submissions by candidates. It also may be used to assess an individual’s perceived fitness for a particular job, including their personality, aptitude, cognitive skills, or other perceived qualities, based on their performance during screening tests, video interviews, or other virtual interactions. AI also may be used to monitor and analyze employees’ working patterns or productivity based on measurable output, including even the most fundamental of activities such as keystrokes. Employers might presume that, because this is data-driven, there is no risk of unlawful discrimination or bias.Continue Reading EEOC issues guidance on employer use of AI under the ADA

OSHA issued its Emergency Temporary Standard (ETS) in early November. A series of challenges quickly ensued, resulting in a stay of the ETS and a consolidation of the cases before the Sixth Circuit. On December 17, 2021, the Sixth Circuit lifted the stay. OSHA has indicated that it will delay enforcement of the ETS deadlines…