In a memo released March 20, the National Labor Relations Board's General Counsel, Jennifer Abruzzo, updated her remaining prosecutorial priorities, identifying the kinds of cases she wants regional offices to send her for review. Some categories would challenge decades-old precedent Abruzzo believes are too employer friendly. Among the issues targeting employers, some of the most significant are:
- Cases involving settlement offers that include a waiver of the right to reinstatement in exchange for additional compensation. In Abruzzo's view, offering a settlement by which an employee waives reinstatement in exchange for enhanced remedial payments is inherently unlawful.
- Cases involving what she would have the Board define as "inherently" protected concerted activities. Abruzzo has made no secret of the fact she wants to expand the definition of inherently concerted activities to include, among other things, employees' workplace discussions or activities related to health and safety, insurance coverage, racism, gender and/or age-based discrimination, and sexual harassment.
- Cases involving post-contract suspension of wage and benefit increases. Abruzzo wants the Board to expand the list of circumstances under which an employer must continue making increases after a collective bargaining agreement expires.
- Cases involving employees' Weingarten rights that would serve as a vehicle for her argument that employees should be entitled to obtain advance copies of the questions an employer plans to use during a disciplinary investigation.
- Cases that would allow the General Counsel to argue that certain electronic surveillance or algorithmic management interferes with employees' exercise of their Section 7 rights because such technologies allow employers to discover information related to their employees' protected activity, which Abruzzo maintains should be confidential.
According to GC Abruzzo, existing law governing these and the other topics outlined in her memo "improperly compromise[s] the rights of workers." Accordingly, she is looking for cases where the General Counsel might urge the Board to expand employee protections by either returning to previous pro-employee rules or adopting new employee-friendly standards. In GC Abruzzo's words, "Placing these issues before the Board for reconsideration is one of my most important objectives as General Counsel. Without doing so, Board law that undermines workers' statutory rights remains unchallenged, which will continue to detrimentally impact millions of employees throughout the country."
While it is too early to tell which of GC Abruzzo's causes the Board will take up, it is safe to say that the Board is predisposed to agree with at least some of them. In its recent decision in McLaren Macomb, for instance, the Board held that the mere act of proffering a severance agreement that contains a broadly worded confidentiality clause is unlawful. (For more on McLaren Macomb, please see our advisory). Given the Board's analysis in that case, it may be open to Abruzzo's arguments regarding waivers of reinstatement in settlement agreements.
Needless to say, there is much more to come. DWT will continue to monitor these and other labor law developments. Please reach out to the authors if you have questions about how Abruzzo's prosecutorial priorities may impact your organization.