Labor Law Recap & What To Watch For In 2022

Volume: 20 | Issue: 80
December 29, 2021

Earlier this month, KZA presented a webinar on the Biden National Labor Relations Board (NLRB or Board), explaining the changes made to its membership and what employers can expect in 2022. Please consider watching the recording and feel free to share it with others. Because the National Labor Relations Act applies to all private employers – those with unions and those without unions, this is information all private employers need.

President Biden’s appointments to the NLRB have resulted in its transition back to a Democratic majority. While this transition is always concerning for employers, our attention is currently heightened because of the extremely aggressive agenda announced by the NLRB’s new General Counsel as well as President Biden’s declaration that he intends to be the most “pro-union president, leading the most pro-union administration in history.” 

Key NLRB developments in 2021 – As we have written in prior issues of the KZA Employer Report this year, President Biden’s new NLRB General Counsel announced aggressive changes in how the Board’s Field Offices should approach unfair labor practice charges and pursue damages and other remedies from employers. She also seeks to change many areas of Board law, such as the current standards for determining the legality of handbook rules, confidentiality and non-disparagement provisions in severance and arbitration agreements, confidentiality instructions in workplace investigations, employee use of employer email systems, and union access to employers’ premises. 

What to watch for in 2022 – In addition to the items discussed in our recent webinar, employers should expect to see the following developments in 2022:

  • Changes to the joint employer standard: The NLRB has already indicated that in February, it will seek to change its rule on the joint employer standard. In short, the Trump NLRB revised the joint employer rule in 2020 to a common sense, business-friendly standard; the Biden Board is looking to undo that development.
  • Changes to bargaining units: The NLRB is currently considering changing how it determines if a petitioned-for bargaining unit is an appropriate unit. The Board may return to a standard it used in 2011 that allows small “micro-units,” making it much easier for unions to organize.
  • Changes to the independent contractor standard: The Board just announced that it is considering changing its standard for determining whether a worker is an independent contractor. The Trump NLRB rejected a progressive independent contractor test adopted by the Obama NLRB and returned Board law to its prior independent contractor standard; the Biden NLRB is considering reversing course and returning to the Obama NLRB’s standard.

Labor law and its application to your day-to-day operations is complicated. In an area where the law is always changing and the stakes are extremely high, KZA offers employers decades of labor law knowledge and experience litigating before the Board. Our attorneys are always available to help you prepare for these changes and educate your managers and supervisors about the National Labor Relations Act. If we can assist you with policies and procedures, training, or the defense of any charges or litigation in 2022, please contact us. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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