Monday morning musings for workplace watchers.
10(j) Injunctions |'Fair Chance’ Legislation
Robert Iafolla: Soon after Jennifer Abruzzo started running the National Labor Relations Board’s legal arm in the summer of 2021, she pledged to aggressively seek federal court orders to immediately halt employers’ unfair labor practices.
While the NLRB has initiated bids to obtain injunctions at a higher rate under Abruzzo than her Trump-era predecessor, she hasn’t brought the agency back to the levels seen during the Obama administration.
Viewed by some labor lawyers as the teeth of the NLRA, 10(j) injunctions—named after the section of the National Labor Relations Act permitting the agency to go straight to court—are powerful because they can swiftly impose the type of relief on a temporary basis that can take the board years to get: a court-enforced order against an employer.
The NLRB has authorized 10(j) injunction cases at a rate of 16.7 times per year since Abruzzo took the reins in July 2021, according to a Bloomberg Law analysis of NLRB statistics. The board’s rate was 13.9 authorized 10(j) cases per year during Republican GC Peter Robb’s time in office.
Companies charged with labor law violations know Abruzzo won’t hesistate to seek 10(j) injunctions when warranted, NLRB spokeswoman Kayla Blado said.
“Her strong remedial initiatives, her directive towards securing interim settlements where Section 10(j) relief is appropriate, and the overall increased settlement rate as compared to Fiscal Years 13 to 17 has resulted in significant wins for labor law enforcement while reducing the Agency’s need to go to court for an injunction,” Blado said in a statement.
The settlement rate, which ranged between 92% and 95% for fiscal years 2013 to 2017, was at least 96% during the following fiscal years, according to agency statistics.
The moderate level of 10(j) activity under Abruzzo can also be explained by all the other projects she and her staff have focused on—especially her efforts to overturn precedents to make the rules of labor-management relations more labor friendly.
Her strategy to aggressively change NLRB case law has a “bigger bang for the buck” than convincing a federal judge to issue an order against a single employer, particularly when new precedents affect nonunion workers, said Jerry Hunter, an NLRB general counsel during the George W. Bush administration.
“The GC has been extremely busy,” said Hunter, who practices at the management-side firm Bryan Cave Leighton Paisner LLP. “She’s had success overturning decisions, and that’s going to have a much greater impact than a 10(j) injunction against Starbucks in Buffalo or Seattle.”
But Abruzzo’s 10(j) record overall is better than what the Starbucks cases would indicate. Her lawyers have won injunctive relief in 14 of the 17 cases litigated to a ruling, plus they’ve obtained settlements in another 13 cases.
Starbucks, meanwhile, is trying to make it harder for Abruzzo to win injunctions via a pending petition asking the US Supreme Court to settle a circuit split on the legal test for 10(j) orders.
The company recently received amicus brief support from the likes of the US Chamber of Commerce and the HR Policy Association, seemingly upping the chances that the justices take the case.
Read More:
- Labor Board Goes To Federal Court: 10(J) Injunctions, Explained
- Starbucks’ Discovery Fights Stall Labor Injunction Cases (1)
- NLRB’s New Cemex Standard Threatens Interim Court Order Process
- Starbucks Loses Court Appeal Over Rehiring Fired Activists (4)
- Top NLRB Lawyer Promises Hard-Charging Approach on Court Orders
Chris Marr: Efforts to promote “fair chance” employment policies for people with criminal records got a boost this month with New York’s passage of a Clean Slate Act, part of a broad and bipartisan movement among local, state, and federal policymakers.
The New York measure, which will take effect in November 2024, a year after Gov. Kathy Hochul’s (D) signature on Nov. 16, calls for automatically sealing the criminal histories of people who have completed their prison sentences and stayed out of trouble for a period of time. The wait is generally three years for misdemeanor convictions and eight years for felonies, with exceptions for serious offenses such as murder and sex crimes.
Similar laws have passed in 11 other states, including a mix of Democratic and Republican-led legislatures such as California, New Jersey, Oklahoma, and Utah. The record-sealing laws build on and go beyond other policies aimed at improving employment prospects for people with criminal records, such as “ban the box” laws that prohibit questions about criminal history on initial job applications.
Clean Slate is “part of a constellation of policies that are broadly aimed at helping people with a criminal record get back into employment,” said Ames Grawert, senior counsel at the Brennan Center for Justice at the NYU School of Law.
Among the related policy efforts, Congress enacted a “ban the box” restriction covering the hiring process for federal contractors that took effect in December 2021. The federal EEOC issued guidance in 2012 warning employers that their use of job applicants’ arrest and conviction records could run afoul of anti-discrimination laws in some cases, particularly related to race and national origin bias.
At the local level, the City of Atlanta expanded its nondiscrimination ordinance in 2022 to ban bias based on someone’s criminal history.
At least 15 states have passed “ban the box” laws covering private employers, and more than 20 others apply the policy to state government hiring, along with more 150 cities and counties, according to the National Employment Law Project.
The record-sealing laws themselves also have a broader reach than the dozen states meeting the minimum standards of the Clean Slate Initiative. Many more have narrower versions of these laws, allowing records sealing or expungement for specific kinds of offenses and sometimes requiring that people apply for the relief, rather than get it automatically. The Clean Slate Initiative has active local branches urging lawmakers to pass or expand records-sealing laws in Illinois, Missouri, North Carolina, and Texas.
“The bigger truth is there are a lot of states that have passed this, but New York is establishing itself as a leader in the movement,” Grawert said.
The New York bill had backing from criminal justice reform advocates as well as business groups and individual companies including
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