On October 31, 2022, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released Memorandum GC 23-02 urging the Board to interpret existing Board law to adopt a new legal framework to find electronic monitoring and automated or algorithmic management practices illegal if such monitoring or management practices interfere with protected activities under Section 7 of the National Labor Relations Act (“Act”).  The Board’s General Counsel stated in the Memorandum that “[c]lose, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” and urged the Board to find that an employer violates the Act where the employer’s electronic monitoring and management practices, when viewed as a whole, would tend to “interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”  Given that position, it appears that the General Counsel believes that nearly all electronic monitoring and automated or algorithmic management practices violate the Act.

Continue Reading Following the Recent Regulatory Trends, NLRB General Counsel Seeks to Limit Employers’ Use of Artificial Intelligence in the Workplace

Employees’ free choice and their right to a secret-ballot election on union membership are potentially at risk, given the latest development from the Office of the General Counsel of the National Labor Relations Board (“NLRB” or “Board”). On April 11, 2022, the NLRB’s General Counsel filed a brief urging a change in long-standing precedent, demanding that the Board force employers to recognize unions as the representative of their employees without first allowing employees the opportunity to cast their votes on union membership in a secret-ballot election held by the Board. The only real requirement for this dramatic result is that the union present signed authorization cards from a majority of the employees that ostensibly confirm the employees’ desire to be represented by the union and that the employer decline recognition of the union without a good faith doubt as to the union’s majority. This brief is General Counsel Jennifer Abruzzo’s first major move to follow through on her previously stated goal of restoring this standard—known as the Joy Silk doctrine—which was abandoned more than 50 years ago.

Continue Reading NLRB General Counsel Pushes to Skip Union Elections by Reinstating Joy Silk Doctrine

The National Labor Relations Board (“NLRB”) recently sought public comments on the continued use of videoconference technology to conduct hearings. The co-chairs of Epstein Becker Green’s Labor Management Relations Practice submitted the attached comment arguing against continuing remote hearings because they are less efficient, credible, austere and probative and deprive all parties of due process.  

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

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