Management Memo

Last week, as widely reported, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to Protect Workers from the COVID-19 (see full details in our Insight). Currently the subject of much pending litigation including a Temporary Restraining Order (TRO) and thus, for the time being, in limbo, the ETS is nonetheless a set of federal regulations that, unless overturned, applies to a large proportion of U.S. employers with 100 or more workers and requires those employers to either: (a) mandate that all ...

On August 12, 2021, Jennifer A. Abruzzo issued her first memorandum as newly sworn National Labor Relations Board (“NLRB” or “Board”) General Counsel. The memo, Mandatory Submissions to Advice, Memorandum GC 21-04 (“GC Memo 21-04”), serves as a road map of the new General Counsel’s plans and her intent to depart from the priorities of her predecessor, Peter Robb, and to target cases and initiatives from the Trump Board that overruled the precedent from the Obama Board. As we have previously reported, President Biden, on the day of his inauguration, took the ...

As featured in #WorkforceWednesday:  This week, we look at the potential “game changing” legal and policy shifts coming to labor relations.

The Protecting the Right to Organize (PRO) Act, if enacted, would make the most significant changes to the National Labor Relations Act since the National Labor Relations Board (NLRB) was created in 1935. The PRO Act is a top priority of the union movement in the United States and is supported by President Biden, who claims to be the most pro-union president in U.S. history.  Attorney Steve Swirsky discusses the potential impact the PRO Act ...

On July 21, 2021, the U.S. Senate confirmed Jennifer Abruzzo to a four-year term as the General Counsel of the National Labor Relations Board (“NLRB” or “Board”). Ms. Abruzzo’s confirmation was by a vote of 51-50, with Vice President Kamala Harris casting the tie-breaking vote. Ms. Abruzzo was sworn in the next day, by NLRB Chair Lauren McFerran. As the NLRB notes, this is “the first time in NLRB history women are serving as both Chairman and General Counsel” of the agency.

Ms. Abruzzo has spent much of her career at the NLRB. She previously served as the Board’s Deputy ...

On June 15, 2021, the Office of General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released an Advice Memorandum, explaining that an Illinois pub did not commit an unfair labor practice when it fired an employee who had previously complained about the pub’s COVID-19 safety policies, because the employee’s complaints did not constitute “protected concerted activity,” as defined under the National Labor Relations Act (“NLRA”). The NLRA protects employees engaged in concerted activity, including participating in union activities ...

On the Workforce Bulletin blog, I recently co-authored “New York Hero Act Amendments Passed and Sent to Governor for Signature” with my colleagues Susan Gross Sholinsky, Robert J. O'Hara, and Christopher Shur.

Employers with union represented employees should pay special attention to the provisions of the HERO Act that mandate a role for labor unions in the Workplace Safety Committees provided for in the Act.

Following is an excerpt:

As we previously reported, on May 5, 2021, New York Governor Andrew Cuomo signed the Health and Essential Rights Act (the “HERO Act” or ...

Following on his promises to be “the most pro-union president you’ve ever seen,” President Joe Biden signed the Executive Order on Worker Organizing and Empowerment (“Executive Order”) on April 26, 2021, creating a task force whose purpose is to strengthen unions and make it easier for workers to unionize. Along with endorsing the Protecting the Rights to Organize Act in March, President Biden is affirmatively putting a heavy federal foot on the scale to empower unions and bolster declining union membership, both in the public and private sectors.

The Executive Order ...

On March 30, 2021, the Office of General Counsel of the National Labor Relation Board (“NLRB” or “Board”) released an Obama-era Advice Memorandum, originally prepared in 2016, opining that racially charged comments were protected concerted activity.  Just one day later, on March 31, 2021, Acting General Counsel Peter Sung Ohr affirmed in his latest Memorandum (“March 31^st Memorandum”) his plan to pursue a broadening of employees’ protections under Section 7 of the National Labor Relations Act (“NLRA” or “Act”) beyond concerted activities relating to ...

Confidential arbitration agreements between employers and their employees are commonplace.  Employers favor such agreements for many reasons, including preserving privacy and allowing legitimate claims to be either settled or litigated based on their merits, rather than the threat of public embarrassment or high defense costs.  Employees, too, may value the confidentiality afforded by arbitration.  In contrast to private and confidential arbitration proceedings, public testimony and publicly filed court pleadings, motions, and briefs may contain unflattering or ...

New York State now requires employers to grant employees paid time off for COVID-19 vaccinations. In my recent post with Susan Gross Sholinsky and Nancy Gunzenhauser Popper, "New York Issues FAQs on Paid Vaccination Leave Law," we note that the law allows for limited waivers in collective bargaining agreements. While the law is vague, the State has now given some additional guidance in FAQ's issued this week.

The following is an excerpt from the post:

As we recently reported, as of March 12, 2021, all private employers in New York must provide their employees with up to four hours of ...