On December 21, 2022, NY Governor Kathy Hochul signed into law the Warehouse Worker Protection Act (“the Act’), which will be effective February 19, 2023. As noted in Governor Hochul’s press release announcing the Act, a major driving force behind the legislation was organized labor, including the Teamsters and the Retail, Wholesale and Department Store Union.

Continue Reading NY Warehouse Workers Protection Act Requires Employer Disclosure on Mandated Work Speed and Quotas and Offers Protection for Employees

In an Advice Memorandum dated April 20, 2022 and released on November 30, 2022, the Division of Advice within the National Labor Relations Board’s (“NLRB” or “Board”) Office of the General Counsel urged the Board to overturn existing Board law to significantly lower the standard for when an employer must furnish the union with its general financial information. This latest push to bolster unions during bargaining follows the NLRB’s General Counsel Jennifer Abruzzo’s (“GC”) issuance of Memorandum GC 21-04 regarding Mandatory Submissions to Advice on August 12, 2021, wherein she signaled her intent to change this standard.

Continue Reading NLRB General Counsel Proposes Lower Standard for Requiring Employers to Provide Financial Information

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

The National Labor Relations Board (“Board”) isn’t giving up on pandemic related mail ballots in representation elections any time soon. On September 29, 2022, in a decision concerning an election at a Seattle area Starbucks, the Board passed on an opportunity to cast aside its COVID-Era six-factor test articulated in Aspirus Keweenaw, 370 NLRB No. 45 (2020), which has been used for the past two years to determine if a Board-conducted representation election should be conducted by mail or in person (called a “manual” election in Board parlance). Instead of jettisoning the Aspirus test entirely, the Board replaced just one of the tests factors, now relying on the CDC Community Level Tracker rather than test positivity trends or rates in this analysis.

Continue Reading NLRB Offers New Guidance on When It Will Hold an In-Person Election – Replaces Positivity Metric with CDC Tracker

On April 7, 2022, Jennifer Abruzzo, General Counsel of the National Labor Relations Board (“NLRB” or “Board”), issued Memorandum GC 22-04, titled “The Right to Refrain from Captive Audience and other Mandatory Meetings” (“GC Memo”). It is no secret that the General Counsel has been an advocate for policies and practices that would increase union representation and make it easier for unions to gain recognition and win votes on representation. This includes restricting steps employers can take to share their views with employees. Such a step that the GC Memo calls for is a series of restrictions on what have been called “captive audience speeches,” that is, meetings on company time where employers present their views.

Continue Reading NLRB General Counsel Urges Labor Board to Expand Prohibition on “Captive Audience” Meetings and Employers’ Right to Present Their Views on Unionization

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.  

As explained in greater detail by our colleague Stuart M. Gerson, the Supreme Court of the United States handed down two major, and quickly decided, rulings on January 13, 2022. After hearing oral arguments only six days earlier, the Court issued two unsigned decisions per curiam. A 5-4 decision in Biden v. Missouri dissolved a preliminary injunction against enforcement of an interim final rule (“Rule”) promulgated by the Centers for Medicare & Medicaid Services (CMS), requiring recipients of federal Medicare and Medicaid funding to ensure that their employees are vaccinated against COVID-19.

But the Biden administration’s effort to promote universal vaccination with a more sweeping rule—an Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) and directed at all U.S. employers with at least 100 employees—was blocked by the high court. A 6-3 decision reversed the action taken by U.S. Court of Appeals for the Sixth Circuit in December, and reimposed a stay of the ETS, meaning that OSHA may not enforce the mandate pending the outcome of further litigation.

Continue Reading Supreme Court Rejects OSHA Vax-or-Test ETS for Large Employers but Allows CMS Vax Rule for Health Care Workers

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

Continue Reading CDC Shortens Recommended COVID-19 Isolation and Quarantine Periods

Last week, as widely reported, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to Protect Workers from the COVID-19 (see full details in our Insight). Currently the subject of much pending litigation including a Temporary Restraining Order (TRO) and thus, for the time

On August 12, 2021, Jennifer A. Abruzzo issued her first memorandum as newly sworn National Labor Relations Board (“NLRB” or “Board”) General Counsel. The memo, Mandatory Submissions to Advice, Memorandum GC 21-04 (“GC Memo 21-04”), serves as a road map of the new General Counsel’s plans and her intent to depart from the priorities of