The National Labor Relations Board is poised for a significant change in direction following the Senate’s confirmation of James Macy to the Board on August 7. Once seated, Macy will give Republican appointees a 3-1 majority on the five-member Board, with one seat remaining vacant.
For employers, the change could be consequential. Over the past several years, the NLRB adopted a series of decisions expanding employee and union protections while imposing additional restrictions on workplace policies, severance agreements, union organizing responses, and other common employer practices. A Republican majority is expected to revisit several of those decisions and move federal labor law in a more employer-friendly direction.
Where Employers May See Change
Employee Handbooks
In Stericycle, the Board adopted a more restrictive standard for evaluating workplace rules that could discourage employees from exercising rights under the National Labor Relations Act. A new majority could return to a standard that gives greater weight to legitimate employer interests when evaluating confidentiality, conduct, social media, investigation, and similar policies.
Severance Agreements
The Board’s McLaren Macomb decision significantly restricted broad confidentiality and nondisparagement provisions in severance agreements with employees covered by the NLRA. Republican Board members have already indicated a willingness to reconsider that decision, making it a particularly likely candidate for change.
Union Organizing
The Board may also revisit Cemex, which created a new framework for responding to union demands for recognition and expanded the circumstances in which an employer’s conduct during an organizing campaign can result in an order to recognize and bargain with a union. The Sixth Circuit has already rejected an important component of the Cemex framework, providing additional protection for employers in Ohio and other states within the circuit.
NLRB Remedies
Recent Boards have also sought to expand the financial remedies available to employees affected by unfair labor practices. A Republican majority is likely to favor a more traditional approach to those remedies. The Sixth Circuit has likewise rejected an important aspect of the Board’s recent expansion of monetary relief.
What Employers Should Do Now
The most important point is that the Board’s change in composition does not itself change existing law. Current NLRB precedent remains applicable unless and until the Board revisits it in a future case.e
Employers therefore should not immediately abandon policies or practices adopted in response to recent Board decisions. Instead, this is a good time to identify handbook provisions, severance agreements, labor-relations practices, and pending NLRB matters that could benefit from a change in Board law.
The direction of the Board is becoming clearer. Employers should expect greater flexibility in several important areas of federal labor law, but the changes will occur decision by decision rather than overnight. KJK will continue to monitor those developments and identify opportunities for employers as the new Board begins reshaping existing precedent.
To assess how these changes could affect your handbook, severance agreements, or pending NLRB matters, contact KJK Labor & Employment attorneys Dave Campbell (JDC@kjk.com) or Kyle Podolak (KJP@kjk.com).