What A Difference Leadership Makes - A Practitioner’s Guide to The Impact of Activist Federal Agencies

This article will address the ongoing areas in which administrative leadership is moving substantive enforcement changes in core areas of labor law focusing on how Board procedures facilitate such changes. We will discuss shifts in the prosecution of cases by the General Counsel of the National Labor Relations Board in injunction cases and collaborative enforcement with other federal agencies as well as a number of substantive areas.

The significance of involvement of the NLRB in a classification analysis of independent contractor status is both complex and subtle.  In traditional civil labor law, states and courts as well as the United States Department of Labor have evolved tests that focus, within different degrees of emphasis on status. These range from a multi-factor test that evaluates the degree to which a worker operates as a self-sufficient business complying with state laws that regulate the work. This has been an approach common in the trucking and intermodal world, buttressed by state licensing and insurance requirements, particular for owner operators in the brokerage industry.

Other approaches focus on the risk (of loss and profit) of the independent contractor.

Another common trend has been to identify the degree of control the engaging company exercises on the worker, and if the degree of performance is micromanaged for effectiveness of performance or discipline separate from outright termination. The most recent developments have shifted the focus to the employer’s form of business operations, such that if there is little substantive difference between the work performed regardless of status, an individual should be treated as an employee.

As employers know all too well the background costs and risks differ depending on classification from mandated benefits to wage and hour increments and leave entitlements.

In a past case under a previous administration, SuperShuttle DFW, N.L.R.B., 16–RC–010963, Decision 1/25/19, the NLRB chose an employer friendly approach, identifying the entrepreneurial opportunity of the worker as an important factor. That approach had been earlier limited in NLRB, Board Decision, FedEx Home Delivery, 361 N.L.R.B. 610, 201 LRRM 1050.

Now the NLRB is considering a swing back by reconsidering SuperShuttle and in The Atlanta Opera, N.L.R.B., Case 10-RC-276292, issued an open-ended invitation for briefs 12/27/21.

The invitation for briefing is an important part of how the Board discharges its unique quasi-legislative process where, in decision making, it can revisit past approaches as if it were rulemaking, without the limitations of this process. The message here for practitioners is important because an NLRB decision can have important national influence. Moreover, a classification decision defines membership in potential bargaining units, and thus the organizing role of the Board. Similarly, extending NLRB authorly also raises the protentional for unfair labor practice charges and, in a newly activist agency, damages for economic consequences such as out of pocket in addition to more traditional remedies such as reinstatement and back pay awards. Arguably, such an approach could extend to emotional distress.

The next step beyond existing Board authority likely requires Congressional action and could extend to monetary fines and attorney’s fees. Related to this trend is the expanded potential for interagency information sharing, an enforcement approach that would expand an effort begun under the Obama Administration to link the Railway Labor Act, which covers some of the transportation modes with the NLRA. The underling memorandum of understanding can be found here. (https://aboutblaw.com/08n).

A final action step involves how and when the Agency should resort to the federal courts, clarifying that the standard for seeking injunctive relief under Section 10(j) of the National Labor Relations Act (https://www.nlrb.gov) should be the possibility of  irreparable harm. While this does not restate the legal basis for the issuance of injunctions, it does signal an administrative determination to make broader and more expedited use of the approach, especially in remedial situations.

Conclusion and Going Forward

In the fluid landscape of Covid law, future articles will address the Equal Employment Opportunity Commission and the emerging view that Covid can produce conditions that are protected disabilities that require reasonable accommodation and are protected against discrimination. We will also comment briefly on the shift in OSHA’s authority to enforce vaccination as an OSHA standard occasioned by a recent decision of the United States Supreme Court.


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