Top Five Labor Law Developments For March 2024 – Employee Rights/ Labour Relations

1. A Texas federal judge struck down the National Labor
   Relations Board’s new joint-employer rule. U.S. Chamber of
   Commerce v. NLRB, No. 6:23-cv-00553 (E.D. Tex. Mar. 8, 2024).
   The rule sought to broaden the Board’s prior standard by
   finding joint-employer status where an entity possesses the
   authority to control at least one of seven enumerated essential
   terms and conditions of employment, regardless of whether the
   entity actually exercises that control. It was set to take effect
   March 11 after two previous delays. The court issued its order
   following oral arguments between the Board and a coalition of
   business groups led by the U.S. Chamber of Commerce, which argued
   the rule is unlawfully overbroad. Whether the Board will appeal the
   ruling is uncertain. For now, the Board’s prior 2020 rule
   requiring “direct and immediate control” remains in
   effect. Litigation over the rule is ongoing in the U.S. Court of
   Appeals for the D.C. Circuit between the Board and the Service
   Employees International Union (SEIU), which seeks to broaden the
   scope of the Board’s proposed rule.




2. Collective bargaining agreements (CBAs) negotiated in 2023
   yielded the highest average pay raises in decades, according to a
   Bloomberg Law report. Union contracts provided workers an
   average first-year wage increase of 6.6%. With signing bonuses and
   other lump-sum payments, the average increase jumped to 7.3%. The
   calculations are based on more than 950 CBAs ratified in 2023 that
   cover 2.8 million union-represented workers. Contracts negotiated
   in 2022 provided a 5.7% average increase, and 2021 contracts
   averaged a mere 3.7% increase. Although raises were higher across
   all sectors, the largest wage increases occurred in state and local
   government union contracts.




3. Board prosecutors urged the Board to expand remedies for
   unlawful work rules or contract terms. United Wholesale Mortgage,
   LLC d/b/a UWM Financial Services, LLC, 07-CA-297897 (Mar. 18,
   2024). In a filed brief, prosecutors argued that when the Board
   finds an unlawful work rule or contract term, such as in an
   employment or severance agreement, it should include as part of its
   make-whole relief an order requiring the employer to expunge any
   imparted employee discipline or retract past enforcement of the
   rule or term. The brief argues that “mere rescission of the
   unlawful provision — without unwinding any attendant
   discipline or enforcement” is not sufficient for
   employees’ relief. While the brief focuses on the work
   rules’ and contract terms’ substance, prosecutors noted the
   expanded remedies should also apply when an employer discriminately
   applies the rule(s).




4. The Board and the Equal Employment Opportunity Commission
   (EEOC) plan to issue joint guidance regarding workplace profanity
   during union activity. The planned guidance stems from the
   Board’s 2023 decision returning to its setting-specific
   standard for determining whether an employer lawfully disciplines
   employees whose protected concerted activity crosses the line into
   abusive conduct. That standard arguably provides employees more
   license to make abusive or offensive comments while engaging in
   putatively protected concerted activity. However, the standard
   creates significant conflict between Board law and workplace
   discrimination and harassment laws. Joint guidance from the Board
   and EEOC would aim to resolve this conflict and provide needed
   clarification for employers.




5. Board members urged President Joe Biden to fill the vacant
   Republican Board seat. During an American Bar Association
   conference, the Board’s four current members urged the
   president to fill the seat as soon as possible to help the agency
   work through its heavy workload and provide more diverse
   viewpoints. The Board currently has a 3-1 Democratic majority, and
   it has been without a second Republican member since December 2022,
   when Board Member John Ring retired. President Biden has not
   appointed a replacement despite the Senate confirming Democratic
   Board member Gwynne Wilcox to a second term in September 2023.
   Although Senate Democrats assured Republicans during Wilcox’s
   confirmation vote that a Republican nominee would soon follow, it
   has yet to happen. The vacancy means each three-member panel
   selected to rule on a case has had a Democratic majority.

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