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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

Yesterday, the National Labor Relations Board (NLRB or Board) announced a much-anticipated proposed regulation to establish a rule-driven standard for determining joint-employer status under the National Labor Relations Act (NLRA).

The Board’s proposed rule represents a return to a more common-law-centered understanding of joint-employer relationships, establishing joint employer status based on the exercise of substantial direct and immediate control. The Board’s announcement explained that its proposed rule, which is subject to revision after public comment, best serves the NLRA’s purposes by imposing bargaining obligations only on those employers that actually play an active role in establishing essential terms and conditions of employment. In other words, a related business partner not actively participating in employment decisions (such as setting employee wages, benefits, and other essential terms and conditions of employment) ought not be drawn into the collective bargaining process. The Board stated:

An employer . . . may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.Continue Reading National Labor Relations Board proposes regulation to establish new joint employer rule

As a presidential candidate, Donald Trump voiced many opinions about his priorities and goals for the country. Yet as President-elect Trump prepares to take office in January, employers remain uncertain as to what the American workplace will look like under a Trump administration. As a lead-up to the presidential inauguration, we will provide a series of posts looking at five areas critical to employers and prognosticating as to how the new administration will impact these areas.
Continue Reading Employing Workers in a Trump Administration

In a just-released Advice Memorandum found here, the NLRB General Counsel’s office (“GC”) publicized its position that employers must bargain with their unions before implementing new social media policies. The Memo “casually” notes that work rules, such as social media guidelines, provide an independent basis for discipline and are mandatory subjects of bargaining.  According to the GC, even if an employer navigates around the ever-increasing landmines set by the Board and GC in developing a social media policy, employers must also seek union approval before implementing the policy, unless, of course, the underlying collective bargaining agreement contains a clear and unmistakable waiver of the union’s right to bargain over such policies.Continue Reading NLRB General Counsel Keeps Unfriending Employer Social Media Policies

Employers must remain watchful for increased union organizing at their workplaces. Those that dismiss the possibility that their employees would consider unionizing are often left disappointed and unionized when last minute anti-union campaigns in response to “surprise” representation petitions are “too little, too late.” Recent actions by the National Labor Relations Board—examples are below– highlight the need to prepare now, well before a union targets an employer.Continue Reading Watch for Unions At Your Doorstep!

Following the lead of Maryland and Illinois, California is the latest state to stop employers from requesting social media log-in information, such as user names and passwords for Facebook, Twitter, or e-mail, from employees and job applicants. The new law also includes protections from employer retaliation against employees who refuse to provide this personal access…

NLRB holds that employer’s practice of requesting employees to keep internal investigations confidential violates the NLRA.

The National Labor Relations Board ("NLRB" or "Board") is at it again, this time finding that an employer’s policy prohibiting employees from discussing ongoing investigations of employee misconduct infringes upon employees’ Section 7 rights in violation of Section 8(a)(1) of the National Labor Relations Act ("Act" or "NLRA"). Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 358 NLRB No. 93 (July 30, 2012).Continue Reading NLRB Forbids “Do Not Discuss” Warnings to Employees During Confidential Investigations

The United States District Court for the District of Columbia voided the NLRB’s so-called “quickie election” rules because the NLRB lacked the quorum necessary when it adopted its Amended Election Rules to expedite the current union election process. See Chamber of Commerce, et al v. NLRB. Our more in-depth analysis of those amended rules is in our earlier post at here. As noted there, the United States Chamber of Commerce and several trade organizations sought to invalidate the rules on several legal grounds, including lack of quorum.Continue Reading NLRB’S “Quickie Election” Rules Invalidated

The General Counsel for the National Labor Relations Board ("Board") issued a complaint yesterday alleging that 24 Hour Fitness USA, Inc., violated the National Labor Relations Act ("NLRA") by insisting that all employment-related disputes be resolved through individual arbitration. The employer, which operates fitness centers nationwide, requires its non-union workforce, as a precondition of hire, to sign written waivers surrendering any right to pursue collective or class action lawsuits or arbitrations against the Company. Employees may later opt-out of this waiver, but only by submitting a Company-created form within 30 days of their signing the original release.Continue Reading NLRB Continues To Oppose Arbitration Policies That “Chill” Employee Class Actions

The District of Columbia Circuit Court of Appeals granted a motion for an injunction pending appeal filed by national trade associations challenging the NLRB Posting Rule that requires all employers covered by the National Labor Relations Act to post a notice informing employees of their rights under the Act.  In granting the motion to enjoin…