Just a day after the newly Republican-majority National Labor Relations Board (NLRB) restored its “direct and immediate control” test for joint employer status and implemented a new employer-friendly test for handbook policies, it took two more big steps: overturning a ruling limiting the changes employers can unilaterally implement in union workplaces and disallowing so-called “micro-units”.
In its decision regarding unilateral changes, the Board restored old precedent that permits employers to unilaterally change policies without the union’s permission – and without first bargaining with the union – if they have taken similar actions in the past.
In its decision regarding micro-units, the Board overturned its 2011 decision that made it easier for unions to organize very small groups of employees (which, in turn, made it easier for unions to get a foothold in an otherwise non-union company). Instead, under the Board’s decision Friday, the old standard – where employers could establish that all employees sharing a community of interest should be included in the same unit – once again stands, and the playing field between unions and employers has become a bit more level.
These rulings aren’t surprising. As we wrote last week, we expect that the trend of employer-friendly decisions will continue, so stay tuned.
The newly Republican-majority National Labor Relations Board (NLRB) has been busy — just yesterday overturning two employee-friendly standards.
First, the Board overturned its decision in Browning-Ferris, which said that “indirect control” or the ability to exert such control over another company’s workers is sufficient to make a you a joint employer. With this ruling, the Board returned to its more employer-friendly joint employer standard, which looks to “direct and immediate” control.
Second, the Board reversed its aggressive position on employee handbook policies and provisions. Previously, the Board had held that a policy is illegal if employees could “reasonably construe” it to prohibit them from exercising their rights to come together (or collectively bargain) under the National Labor Relations Act (NLRA). This standard had been used by the board to find many employer policies (such as social media and confidentiality policies) illegal. However, per yesterday’s decision, the Board will instead be focusing on the “nature and extent” of a challenged policy’s “potential impact on NLRA rights” and the “legitimate justifications associated with the rule” — which together make for a far more pro-employer approach.
Employers now find themselves in a far better position when it comes to joint employer claims and handbook policy challenges. We expect to see additional employer-friendly decisions soon, so stay tuned.