Yesterday, the National Labor Relations Board vacated its December decision in Hy-Brand Industrial Contractors. (Ben and Sharon had called for this action in OnLabor last week here and here.) The Board’s unusual action follows a finding by the Board’s Inspector General that Member Bill Emanuel should have recused himself from participation in the case. The Board noted in its press release that because Hy-Brand had been vacated, “the overruling of the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), set forth therein is of no force or effect.”
The Board’s action was a welcome first step in correcting the damage done by the Hy-Brand decision. Most importantly, for the time being, the Board will determine joint employer status using the standard set forth in Browning-Ferris – a standard that takes into account the reality of today’s fissured workplaces. Beyond that important restoration, however, the Board’s one sentence order vacating Hy-Brand leaves many questions about the future unanswered.
Today, 24.7 million American workers have been forced to sign contracts that, as a condition of employment, require them to waive their rights to joining a class action lawsuit to address sexual harassment and other workplace disputes—instead these workers must act alone to resolve what is often systemic violations of employment protections. The National Labor Relations Board has determined that these arbitration agreements violate workers’ right under the National Labor Relations Act to join together for “mutual aid and protection.” Business interests—and the Trump administration—disagree. In Murphy Oil, the Supreme Court will decide whether workers have the right to come together to protect themselves from workplace issues like sexual harassment. The case could not be more relevant, or present the Justices with two more starkly divergent options.
In Airline Service Providers Association v. City of Los Angeles, the Ninth Circuit affirmed the district court’s dismissal of the contractors’ complaint, finding that the city’s contract clause was not preempted by the National Labor Relations Act, even though it clearly constituted a local government influencing the bargaining process between a private sector actor and the collective bargaining representative of its employees. The court found such influence or interference tolerable by a municipal actor because it determined that the city was acting as a “market participant” not as a “regulator”.
Will the Labor Department appeal a judge’s recent decision that could deny overtime pay to millions of Americans? Labor Secretary Alexander Acosta has been clear that he doesn’t like the Obama administration’s overtime rule, insisting that he wants to reconsider it and possibly make one of his own. But he needs to appeal the judge’s decision regardless, otherwise he’s creating uncertainty that isn’t good for anyone.
The Trump Administration is waging a quiet war on workers. The effort involves anti-union appointments to federal agencies, repeal of Obama-era regulations that were designed to raise the wages of low and middle income workers, and support for anti-worker legislation in Congress.