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NLRB Poised to Become More Employer-Friendly

Compliance
Article
07/25/2017
  • The National Labor Relations Board (NLRB) has two openings on its five-member board. President Trump’s nominees, if confirmed by the Senate, will give the Board a Republican majority.
  • Trump has nominated attorneys Marvin Kaplan and William Emanuel to fill the current openings on the NLRB.
  • A Republican majority could mean the NLRB would look to overturn Obama-era decisions, including those affecting time frames for union elections, micro-bargaining units and the Board’s new joint employment standard.

New board members would likely look to shift future NLRB rulings toward a more employer-friendly focus

Confirmation of two pending nominees for open seats on the NLRB would swing the agency to a Republican majority. President Trump’s picks — Marvin Kaplan, an attorney serving on a federal health and safety commission, and William J. Emanuel, an attorney with Littler Mendelson P.C. — will create the potential for more employer-friendly rulings.

The NLRB is an independent federal agency established to protect the rights of private-sector employees to join together, with or without a union, to improve wages and working conditions. It’s the nation’s main federal labor law enforcement agency. The NLRB is a “quasi-judicial body,” which uses formal records to decide cases in administrative proceedings. Board members, appointed by the President and confirmed by the Senate, serve five-year terms.

With a Republican majority, the Board could overturn Obama-era rulings that in part:

  • Broadened the Agency’s standard for determining joint employer status;
  • Facilitated easier union elections by allowing the union to choose which employees make up a particular bargaining unit (micro-units);
  • Reduced the time frame for union election by limiting employers’ ability to counter a union’s organizing effort; and
  • Expanded protected concerted activity rights to workers in non-union workplaces.

Impact to businesses

Confirmation of President Trump’s nominees would create a Republican majority, which would allow for a shift in future NLRB rulings and a move toward more employer-friendly decisions. However, the Board can only rule on cases chosen by the General Counsel. The current NLRB General Counsel, Richard F. Griffin, Jr., remains from the Obama administration. His term ends November 2017.

Guidance

Although future NLRB rulings may roll back Obama-era rulings, when it comes to joint employer status, employers need to be aware of how other federal agencies, state laws, and court decisions may define and enforce joint employer status differently, adding complexity to their compliance efforts.

About the Authors

Tammy Tyler, Senior Compliance Analyst

Tammy Tyler is a senior compliance analyst with a focus on employment law at Paychex, Inc., a leading provider of integrated solutions for payroll, HR, retirement, and insurance services.

Jennifer Swayze, Compliance Analyst

Jennifer Swayze is a compliance analyst with a focus on employment law at Paychex, Inc., a leading provider of integrated solutions for payroll, HR, retirement, and insurance services.

 

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