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NLRB Top Lawyer Eyes Worker Status in Charting Legal Plans (2)

Aug. 12, 2021, 6:18 PM; Updated: Aug. 12, 2021, 10:49 PM

The National Labor Relations Board’s top lawyer previewed her goals for changing federal labor law—including the test for determining employee status, the boundaries of protected worker activity, and the extent of employers’ duty to bargain with unions.

General Counsel Jennifer Abruzzo issued a memo Thursday instructing regional staffers to send cases related to specific legal precedents she intends to change in her new role.

The memo signals an expansive effort by Abruzzo and her team to reverse the pro-business policies of the Trump administration, including decisions on everything from employee classification to union rules at religious colleges. Her powers as general counsel give her the final word on which cases to prosecute and which legal theories to argue before the NLRB.

Abruzzo highlighted more than 40 Trump-era decisions for possible reconsideration. Some of the cases she’s targeting include:

  • Supershuttle DFW (2019), which lowered the legal threshold for employers to classify workers as independent contractors, allowing “entrepreneurial opportunity” to be considered as a factor;
  • Velox Express, Inc. (2019), which held that employers don’t violate federal labor law by misclassifying employees as independent contractors;
  • The Boeing Co. (2017), which created a new framework for judging employer handbook policies;
  • Caesar’s Entertainment/Rio All-Suites Hotel (2019), which said that workers don’t have the right to use company email for union purposes;
  • Bethany College (2020), in which the board relinquished jurisdiction over religious institutions.

The board majority is set to flip from Republican to Democratic control once Trump appointee William Emanuel’s term expires at the end of August. Biden pick Gwynne Wilcox joined the NLRB this month and David Prouty, who’s been confirmed by the Senate, is ready to take Emanuel’s seat.

Ambitious Agenda

Abruzzo’s ambitions go well beyond just reversing pro-employer rulings handed down during the Trump administration. One of her requests appears to contemplate a potential path for requiring employers to recognize a union based on a majority of workers signing cards—a process known as card check—rather than an election victory.

She asked for cases in which an employer refuses to recognize and bargain with a union that has a card majority, and has either violated the law or can’t explain its reason for doubting the union’s majority support.

The memo shows that the NLRB could turn up the heat on companies operating in the gig economy that rely on independent contractors, including Uber Technologies Inc., Doordash Inc., and Grubhub Inc.

The general counsel’s office may push forward cases that result in a board ruling that makes it harder for companies to classify workers as contractors, something gig economy companies have been fighting with state ballot measures. In addition, Abruzzo is eyeing a change in precedent to outlaw misclassifying a worker as an independent contractor—making it an unfair labor practice in itself.

The move to target the Boeing framework for assessing employer rules and handbook policies could have deep reverberations. Analyzing different policies under that framework resulted in a series of board rulings on a wide range of employer rules, including those governing mandatory arbitration, workplace conduct, cell phone and social media use.

Abruzzo noted in the memo that the vast majority of cases should be processed by the regions, but the “numerous adjustments to the law” over the past several years merited centralized processing of the cases she laid out.

“These shifts include overruling many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers,” she wrote.

General counsels typically serve four-year terms. Board members serve five-year terms but may have less time if they’re appointed to an open seat. Wilcox, who filled a seat that had been vacant since 2018, would need to be re-nominated in 2023.

(Updated with additional reporting throughout. )

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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