The NLRB's New General Counsel Issues First Guidance Memorandum Foreshadowing Reversal Of Key Board Decisions

• Published date: 20 August 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Corporate and Company Law, Contracts and Commercial Law, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Ms Marie Duarte and Jeffrey E. Dilger

There's a new sheriff in town at the National Labor Relations Board, and she is charting a new course for the Board. On August 12, the NLRB's new general counsel (GC), Jennifer Abruzzo, issued Memorandum 21-04, instructing NLRB regional directors on her litigation priorities.

The 10-page memo is divided into three sections: (1) cases and subject matter areas where, in the last several years, the Board overruled legal precedent; (2) initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones she would like to examine carefully; and (3) other case-handling matters traditionally submitted to the GC's office for advice.

Under the first section, GC Abruzzo identified specific areas in which she would like to weigh in, including: employee handbook rules, the validity of confidentiality provisions in separation agreements, what constitutes protected concerted activity, and an employer's right to remove agents from their premises. Many of the decisions issued and policy shifts undertaken by the prior administration will likely be getting a second look. GC Abruzzo has made clear that she is interested in revisiting key Trump-era Board decisions, including:

• The Boeing Co., 365 NLRB No. 154 (2017), which set a new standard for analyzing employer's workplace policies and handbooks. GC Abruzzo wants to reconsider application of Boeing to employer rules governing employee confidentiality, non-disparagement, social media, media communication, civility rules, respectful and professional manner rules, offensive language rules and no-camera rules in the workplace. Employers should expect additional scrutiny on their workplace policies and should exercise caution when issuing discipline pursuant to their policies on these topics.

• SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), which changed the legal standard for employment status by creating a new framework which applied the common-law agency test with consideration of the individual's "entrepreneurial opportunity." Reversal of this decision could have a major impact on employers that rely on independent contractors as part of their business model, by making contractors employees covered by the NLRA.

• Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), which held that employers can lawfully limit employee's personal use of company email, including for union purposes. GC Abruzzo has specifically requested the submission of cases dealing with use of internal...