In 2018 after President Trump criticized certain federal judges, John Roberts, the Chief Justice of the Supreme Court currently presiding over President Trump’s impeachment trial stated, “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” While everyone has their own view as to the accuracy of the Chief Justice’s statement, certainly with regard to the National Labor Relations Board (NLRB), there are indeed Republican members and Democrat members.
The way NLRB membership works, the President gets to appoint three members from his or her party and two members from the other party, all of whom must ultimately be confirmed by the Senate. A pro-business coalition has reported that during President Obama’s administration, more than 90 NLRB precedents were overturned. Now, as the clock ticks towards the end of President Trump’s initial four-year term, the pendulum has completely swung in the opposite direction, and the NLRB is undoing many of the decisions it rendered under President Obama.
For example, prior to President Obama’s election I litigated a case in south Florida as to whether a long-term care facility was a joint employer with its housekeeping department. We were able to prevail with regard to our argument that the two businesses did not jointly employ the housekeeping employees. Under the law as it existed back then, an entity needed to possess and exercise direct and immediate control over the employees’ terms and conditions of employment. This needed to be done directly and immediately and not in a limited and routine manner to be found to be a joint employer.
Under President Obama, however, the NLRB changed this position which had existed for more than 30 years, holding that no longer would the NLRB require the actual exercise of control by the purported employer. Instead, words in a contract that exist between the purported employer and its contractor that are indicative of control could alone be sufficient to make an entity a joint employer. This is regardless of whether or not that purported employer actually exercised control over the contractor’s employees.
Now, following President Trump’s appointment of new members to the NLRB, the organization has published a proposed rule reversing the action of the NLRB under President Obama. This will fundamentally alter the definition of joint employment, making it more difficult for businesses to be held legally responsible for alleged labor and employment law violations by subcontractors. The proposed rule also limits the ability of employees from businesses of this sort to join together to form unions. The issuance of the final version of the rule is imminent. This new rule, if implemented, would require an employer to possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees, in a manner that is not limited and routine, in order to be found to be a joint employer.
While this rule change is imminent, two actual decisions of the NLRB decided in December show this ongoing march toward reversing many of the actions of the NLRB under President Obama. In the first decision, the NLRB reversed a prior holding that had put employees’ rights to unionize ahead of an employer’s property rights. Under President Obama, the NLRB had given employees wide-ranging authority to utilize their employer’s email system for union organizing purposes. However, the NLRB has now held that an employer can prohibit workers from using the employer’s email system for non-work-related purposes. Such an employer policy, if enforced in a non-discriminatory manner, will now likely be lawful.
Another recent decision has once again reversed an Obama-era decision that had tilted sharply toward employee versus employer rights. Under President Obama, the NLRB had held that an employer rule prohibiting workers from discussing workplace investigations, such as sexual harassment or theft of resident property, would likely be illegal. Not only was the Obama era decision seemingly contrary to the position of the EEOC, the NLRB’s sister agency, with regard to assuring employees who complain of sexual harassment that the employer would do everything it could to maintain the confidentiality of the complainant, but it also was contrary to the logical need to maintain confidentiality in order for there to be a fair and complete investigation.
Under the new standard, there will be a difference between a prohibition on discussing ongoing investigations, where the need for confidentiality is essential, versus an investigation in a matter that has been concluded, where it is not as critical to maintain confidentiality. Blanket prohibitions on discussions will still likely be unlawful, so that part of the Obama era position will likely survive.
So, to say the least, as the clock ticks, the law is changing at the NLRB. Handbook provisions that have been in existence for many years should be closely examined, as the rules of the NLRB continue to change.