Legal updates

NLRB updates

Concerted activity
NLRB General Council Jennifer Abruzzo came out with a Memorandum at the start of her appointment, stating that she would apply vigorous enforcement of employees’ rights to concerted activity for mutual aid or protection (GC Memorandum 21-03). In April 2022, Abruzzo instructed that captive audience meetings interfere with employees’ statutory rights and urged a change in labor law to reflect this conclusion (GC Memorandum 22-04).

In December 2022, the Board ruled that workers employed by a contractor on another employer’s property have the right to engage in protected concerted activity unless the activity significantly interferes with the use of the property or business concern. Bexar County II, 372 NLRB No. 28 (2022), returning to standard in New York New York Hotel & Casino, 356 MNLRB 907 (2011).

Bargaining units
In December 2022, the Board overturned two Trump era Board decisions on choosing the appropriate bargaining unit. In Specialty Healthcare, the Board returned to the previous requirement that a party arguing that additional employees must be included in the petitioned for unit has the burden to establish an “overwhelming community of interest” if the unit requested is appropriate.

Union dues check off
In October 2022, the Board overturned another decision from 2019, this time declaring that an employer may not unilaterally stop union dues check off after a CBA expires but must continue this along with most terms and conditions of employment. Valley Hospital Medical Center, 371 NLRB No. 160 (2022).

Election rules update

The NLRB election rules are continuing to change. On January 17, 2023, the D.C. Circuit Court of Appeals invalidated three previous rules; citing that in 2019 the NLRB unlawfully implemented these rules without a formal Notice and Comment Rulemaking process. Based on this decision, now:

  • Employers must provide the union with the Excelsior list of eligible voters within two business days of the regional director’s approval of an election agreement or decision.
  • Certification is required, and immediately upon an election that approves of a union as the exclusive bargaining representative, bargaining is obligated, even if there are challenges to the election.
  • Both parties in a representative election are permitted to choose any representative as election observers (AFL-CIO v. NLRB).

Other NLRB court litigation

Immediately after taking office in January 2021, President Biden removed NLRB General Counsel Peter Robb. On January 27, 2023, the Ninth Circuit Court of Appeals ruled that the President had the authority to do so (Aakash Inc. v. NLRB). The same conclusion that the Fifth Circuit Court of Appeals came to in April 2022. While NLRB members have set terms that are off-limits to presidential administrative change, the President can remove the Board’s General Counsel at any time for any reason.

Non-compete agreements

Initially, non-compete agreements involved highly compensated employees with access to trade secrets. However, employers have increasingly used them in just about any industry and with any level of employee. In response, the Federal Trade Commission has proposed a new rule prohibiting businesses from using non-compete clauses in contracts with workers. The public may submit comments through March 20, 2023, at

What to watch for at the Supreme Court

The Supreme Court is considering a new standard for when an employer is required to provide a religious accommodation to employees by agreeing to hear the case of Groff v. United States Postal Service. Since TWA v. Hardison in 1977, the Court’s test has been that the employer has to accommodate religious beliefs, but only when it is not unduly burdensome.