In October 2023, labor law and workers’ rights were front and center, as the National Labor Relations Board took actions to expand collective bargaining rights and went after a prominent social media company, while California joined a short list of progressive jurisdictions to expand employee leave rights into the area of reproductive loss. More below.
NLRB Finalizes Broader Joint Employer Rule
The National Labor Relations Board (NLRB) has issued a significant and highly anticipated revision to the joint employer rule. If two entities are joint employers under the National Labor Relations Act (NLRA), both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute. The revision to the rule is expected to impact the ability of employees working for franchisees and staffing agencies to collectively bargain with these entities as their “joint” employers.
The new rule replaces a 2020 policy that required workers to demonstrate “direct and immediate control” over key job terms for their employer to be considered a joint employer. The NLRB’s latest revision expands the scope, now allowing a franchisor or user firm to be classified as a joint employer if they have control over aspects such as pay, benefits, or other vital job conditions, regardless of whether that control is exercised directly or indirectly. This includes control exercised through third-party entities like staffing firms.
The rule is a response to concerns that some employers were avoiding responsibility under the National Labor Relations Act by claiming not to have direct control over their workers. Critics of the Rule, such Republican NLRB member Marvin Kaplan, have described it as “unprecedented and unwarranted expansion of the board’s joint-employer doctrine.” The Rule is scheduled to take effect 60 days after publication.
California joins List of States Requiring Bereavement Leave for Miscarriages and Other Reproductive Loss
California Governor Gavin Newsom has signed a bill, S.B. 848, ensuring that workers in the state are granted up to five days of leave within three months of a reproductive loss, which includes miscarriage, stillbirth, failed adoptions, surrogacy, and assisted reproduction. The law, effective immediately, applies to all employers with five or more workers and aims to support employees during these challenging times. California joins a small group of states and local governments, including Utah and Illinois, that have expanded bereavement leave requirements in this area.
Under this new legislation, employees must have worked for at least 30 days to be eligible for reproductive loss leave. While the leave can be unpaid if no existing policy covers it, employees can utilize accrued vacation or sick leave for compensation. Notably, this leave does not need to be taken consecutively. Furthermore, if an employee experiences more than one reproductive loss, employers are mandated to grant up to 20 days of leave in a 12-month period. The law also prohibits employers from retaliating against employees who request or use reproductive loss leave.
In the majority of states that do not require these protections, employers may provide expanded bereavement leave but have no specific obligation to do so.
NLRB picks fight with X Corp (f/k/a Twitter) over Alleged Retaliatory Firing of Employee who criticized Elon Musk’s Return to Work Announcement
X Corp., formerly known as Twitter, is facing legal action after the National Labor Relations Board (NLRB) prosecutors filed a complaint against the company for allegedly violating federal labor laws. The case revolves around the termination of former employee Yao Yue, who was fired after urging colleagues to challenge the company’s return from remote work policy, initiated by Elon Musk’s directive that “if you can physically make it to an office and you don’t show up, resignation accepted”.
Following Musk’s statement, Yue encouraged her coworkers not to resign, but instead to allow themselves to be terminated, citing the lack of any benefit in resigning. The NLRB prosecutors assert that X Corp. terminated Yue unlawfully, aiming to deter other employees from engaging in similar protected activities. Yue’s actions were allegedly protected, concerted activity under the National Labor Relations Act.
The complaint seeks compensation for Yue’s direct and foreseeable monetary harm, as well as other consequential damages resulting from the company’s actions. A hearing is scheduled for January 30, 2024. The situation underscores the risk to employers for potentially infringing on employees’ rights to engage in concerted activities without fear of retaliation.
The case is X Corp.. f/k/a Twitter, Inc. and Yao Yue, case number 20-CA-313470, before the National Labor Relations Board Region 20.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.