Board Issues Final Rule on Joint-Employer Status

October 26, 2023 Today, the Board issued its Final Rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act. Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees. In adopting this new standard, the final rule rescinds the 2020 final rule that was promulgated by the prior Board. The new final rule more faithfully grounds the joint-employer standard in established common-law agency principles. In particular, the 2023 rule considers the alleged joint employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect. By contrast, the 2020 rule made it easier for actual joint employers to avoid a finding of joint-employer status because it set a higher threshold that a putative joint employer must “possess and exercise . . . substantial direct and immediate control” over essential terms and conditions of employment, which has no foundation in common law. The new rule also provides extensive guidance to parties regarding their rights and responsibilities in situations where joint-employer status has been established. “The Board’s new joint-employer standard reflects both a legally correct return to common-law principles and a practical approach to ensuring that the entities effectively exercising control over workers’ critical terms of employment respect their bargaining obligations under the NLRA,” said Chairman Lauren McFerran. “While the final rule establishes a uniform joint-employer standard, the Board will still conduct a fact-specific analysis on a case-by-case basis to determine whether two or more employers meet the standard.” The Notice of Proposed Rulemaking was published by the Federal Register on September 6, 2022 and the comment period for initial comments was open until December 7, 2022. The Board received over 13,000 comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date. Members Prouty and Wilcox joined Chairman McFerran in issuing the Final Rule. Member Kaplan dissented.

Daily eBriefs - October 25, 2023

Civil Procedure Where a group of employees brought suit against their employers, contractors providing war-zone security services to the Department of Defense, based on allegations that their working conditions violated the contractors’ recruiting representations, their employment contracts, and the Theater Wide Internal Security Services II contract between the contractors and the Department of Defense, the contractors met the limited burden imposed by the federal officer removal statute, 28 U.S.C. § 1442(a)(1), as the contractor corporations were “persons” for purposes of §1442(a)(1); the contractors “acted under” a federal officer because, under common-law agency principles, they were independent contractors serving as the government’s agents, rather than acting as non-agent service providers; and the contractors sufficiently alleged a colorable federal defense of compliance with the federal regulations incorporated into the TWISS II contract. DeFiore v. SOC - filed Oct. 25, 2023 Cite as 2023 S.O.S. 21-15261 Full text click here > http://sos.metnews.com/sos.cgi?1023//21-15261.

Daily eBriefs - October 20, 2023

A plaintiff alleging a representative claim under the Private Attorneys General Act must be aggrieved; an employer could not defeat a plaintiff’s assertion of standing by showing she had not been denied a meal or rest break during the year before she submitted her PAGA notice, the employer also needed to show she had been paid all outstanding meal and rest premiums—either before or after her termination. Arce v. Ensign Group - filed Sept. 19, 2023, publication ordered Oct. 19, 2023, Second District, Div. Five Cite as 2023 S.O.S. 3852 Full text click here >http://sos.metnews.com/sos.cgi?1023//B317161.

Brett Huckell Named Deputy to the Assistant General Counsel in the Division of Operations-Management

October 20, 2023 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the selection of Brett Huckell as Deputy to the Assistant General Counsel in the Agency’s Division of Operations-Management. In his new role, he will assist Operations in managing the Agency’s 48 field offices across 26 Regions and will provide programmatic support for national enforcement and administration of the National Labor Relations Act. Mr. Huckell earned his undergraduate degree from Washington State University in 2004, graduating summa cum laude, and his master’s degree from the University of Minnesota in 2006. He began his career at the NLRB in 2005 as a Co-op Field Examiner in the Agency’s Overland Park, Kansas, subregional office (then Region 17, now Region 14), and, upon graduation, was hired as a Field Examiner in the Tulsa Resident Office. He was promoted to Compliance Officer in 2009 and Supervisory Compliance Officer in 2020. In 2022, Mr. Huckell became a Supervisory Field Examiner in Region 14.

Dolores Boda Named Assistant to the General Counsel in the Division of Operations-Management

Today, the National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Dolores Boda as Assistant to the General Counsel in the Division of Operations-Management in Washington, DC. In her new position, Ms. Boda will assist the General Counsel in managing the 26 Regional Offices of the NLRB and provide programmatic support for the national enforcement and administration of the National Labor Relations Act. With a career spanning 24 years, Ms. Boda began working at the Agency in 1999 as an intern in the Region 8-Cleveland office. Upon graduation from Cleveland State University with a master’s in labor relations, Ms. Boda was hired as a Labor Management Relations Examiner in Region 8. After Ms. Boda was promoted to a Supervisory Labor Management Relations Examiner working in the Region 16-Fort Worth office, she joined the Division of Operations-Management staff in Washington, DC when she was promoted to the Deputy to the Assistant General Counsel position in 2014. “Dolores uses her formidable managerial and leadership skills to ensure strong enforcement of the Act is accomplished,” said General Counsel Jennifer A. Abruzzo. “Throughout her twenty-four-year tenure, she has performed exceedingly well, and I have no doubt that she will continue demonstrating her commitment to the Agency and its mission in her new role.”

USCIS Clarifies Policy on L-1 Petitions

U.S. Citizenship and Immigration Services has issued policy guidance in the USCIS Policy Manual clarifying that a sole proprietorship may not file a petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner. This Policy Manual update affirms the existing guidance. The update distinguishes a sole proprietor from a self-incorporated petitioner (such as a corporation or a limited liability company with a single owner), where the corporation or the single member limited liability company is a separate and distinct legal entity from its owner, which may petition for that owner. This update also clarifies guidance regarding blanket petitions. International organizations file blanket L-1 petitions on behalf of all individual entities named in the petition. USCIS is updating policy guidance to clarify that the failure to timely file an extension of the blanket petition does not trigger the 3-year waiting period before another blanket petition may be filed. This guidance, contained in Volume 2 of the Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic. The L-1 nonimmigrant visa classification enables a U.S. employer that is part of a qualifying organization to temporarily transfer employees from one of its related foreign offices to locations in the United States. Existing USCIS policy and practice provide that a sole proprietorship may not file an L-1 petition on behalf of its owner.

Kevin McClue Named Regional Attorney in Region 15-New Orleans

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Kevin McClue as the Regional Attorney of the NLRB Region 15-New Orleans, Louisiana. With a Regional Office in New Orleans, a Resident Office in Little Rock, and a Subregional Office in Memphis, Region 15 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the right of workers to act collectively to improve their wages and working conditions throughout parts of Alabama, Arkansas, Florida, Louisiana, Mississippi, and Tennessee. Mr. McClue graduated from Loyola University with a Bachelor of Arts degree in Political Science in 1986. In 1989, he received his Juris Doctor from the Tulane University School of Law. Prior to joining the Agency in 2000 as a Field Attorney, he served on active duty in the United States Army as member of the Judge Advocate General’s Corps and was the Executive Director of the Legal Aid Bureau in New Orleans. Since 2012, Mr. McClue has served in various supervisory positions with the Agency, including Supervisory Field Attorney of the NLRB’s Region 15 and nationwide Supervisory Compliance Attorney in the Division of Operations-Management in Washington, DC. “Kevin is a tremendous public servant with a strong commitment to the National Labor Relations Act and the Agency,” said General Counsel Jennifer Abruzzo. “Throughout his long tenure, he has performed exceedingly well in roles of increasing responsibility, and I know that he will continue to do so as part of Region 15’s management team.”

Daily eBriefs - October 18, 2023

Employment Facebook shareholders adequately pleaded falsity as to statements in a 2016 Form 10-K filing with the Securities Exchange Commission in which Facebook represented the risk of third parties improperly accessing and using Facebook users’ data as purely hypothetical. In re Facebook Securities Litigation - filed Oct. 18, 2023 Cite as 2023 S.O.S. 22-15077 Full text click here >http://sos.metnews.com/sos.cgi?1023//22-15077.

Daily eBriefs - October 18, 2023

Employment Substantial evidence supported a finding that an employer committed an unfair labor practice by refusing to rehire union-affiliated former employees so it could avoid its statutory duty to bargain; an inference of animus could be drawn from the employer’s prior unlawful conduct and the testimony of a human resources manager. Kava Holdings v. National Labor Relations Board - filed Oct. 18, 2023 Cite as 2023 S.O.S. 21-70225 Full text click here >http://sos.metnews.com/sos.cgi?1023//22-15077.

NLRB Expands Website Language Accessibility

October 13, 2023 Today, the NLRB launched a new series of pages on its website that feature information in 17 languages on employee rights and employer responsibilities under the National Labor Relations Act. It also contains information on how to contact the Agency in those languages. The NLRB utilizes board agents and interpreters to assist in serving employees who speak languages other than English. Over the next several months, the NLRB will develop additional translated materials that will also be available on the website. “Workers need to know their statutory rights in order to fully exercise them,” said NLRB General Counsel Jennifer Abruzzo. “One of my top goals as General Counsel is robust education, protection, and enforcement of workers’ rights under the National Labor Relations Act. Having information available in as many languages as possible is a powerful tool toward reaching that goal.” As part of the NLRB’s initiative to reach speakers of other languages, in 2022, the NLRB created a Spanish language e-filing service on its website for users to file unfair labor practice charges and petitions for union elections. In March 2021, the NLRB launched a Spanish website with information about the National Labor Relations Board.

Unfair Labor Practices Charge Filings Up 10%, Union Petitions Up 3% in Fiscal Year 2023

October 13, 2023 Newly released case processing data confirms that the National Labor Relations Board continues to see an increasing demand for its services. In Fiscal Year (FY) 2023 (October 1, 2022–September 30, 2023), 22,448 cases were filed with the Agency, an increase of 10% over FY 2022. This was the highest number of cases filed since FY 2016. The Agency saw increases in both unfair labor practice charges and representation-related activity. In FY 2023, the number of unfair labor practice (ULP) charges filed with NLRB’s 48 Field Offices increased 10%—from 17,988 charges in FY 2022 to 19,854 charges in FY 2023, continuing the increase from FY 2021 to FY2022 when the Agency saw a 19% increase in ULPs filed. During the same period, 2,594 union representation petitions were filed—a 3% increase over FY 2022. This uptick in filings builds on last fiscal year’s dramatic surge in representation-related activity and represents the highest number filed since FY 2015. In FY 2022, 2,510 union representation petitions were filed—a 53% increase from the 1,638 petitions field in FY 2021. In another notable election-related development, after the Board released its decision in Cemex, Field Offices received 28 RM petitions filed by employers after being asked to voluntarily recognize employees’ union. Under the Cemex framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition. This increase in activity in the Agency’s field offices resulted in a corresponding increase in workload for the adjudicative side of the agency. The Board issued 246 decisions in contested cases during FY 2023, including more than a dozen significant precedent-setting cases, an uptick from 243 decisions in FY 2022. The Board’s increased productivity also slightly lowered the median age of cases pending before the Board—from 108 days in FY 2022 to 106 days in FY 2023. As was the case at the end of FY 2022, however, the Board’s case processing achievements were overtaken by a significant jump in case intake. In FY 2023, the Board received 321 unfair labor practice and representation cases, up from 308 cases in FY 2022, driven by a 10% rise in representation cases brought before the Board. As a result, although the Board—even at static staffing levels—processed more cases than last fiscal year, the rise in case intake left 191 cases pending before the Board at the end of FY 2023, an increase from 145 in FY 2022. The increased workload on both sides of the Agency remains a challenge, and comes as the NLRB continues to deal with funding and staffing shortages. In December 2022, Congress gave the NLRB a $25 million increase for FY 2023, ending a hiring moratorium, preventing furloughs, and allowing the NLRB to backfill some critical staff vacancies. However, the Agency remains understaffed after almost a decade of flat funding. In the past two decades, staffing in Field Offices has shrunk by 50%. “Dedicated NLRB employees have continued working hard to increase the Board’s productivity, but the continuing surge in case intake has again increased our year-end backlog. Although the Agency tremendously appreciated the $25 million increase in funding for FY 2023, and used every extra dollar to address critical staffing vacancies and infrastructure needs, additional resources are necessary to enable the Board to expand staffing capacity and continue processing cases more efficiently,” said Chairman Lauren McFerran. “Our committed and talented NLRB career employees continue to process cases with professionalism and care,” said General Counsel Jennifer Abruzzo. “The President’s Budget requests $376 million for the Agency, which is much needed to effectively and efficiently comply with our Congressional mandate when providing quality service promptly to the public in conducting hearings and elections, investigating charges, settling and litigating meritorious cases, and obtaining full and prompt remedies for workers whose rights are violated.”

Elicia Watts Appointed as Director of the Office of Appeals

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Elicia Watts as Director of the Office of Appeals. In this position, Ms. Watts will oversee the Office which reviews appeals by employers, unions, and individuals who believe their unfair labor practice allegations have been wrongly dismissed by a Regional Office. The Office reviews about 2,000 cases per year. A 26-year veteran of the NLRB, Ms. Watts began her NLRB career in the Regional Office of Region 5 in Baltimore, Maryland in 1997 where she served as a field attorney. She then moved to the Washington Resident Office of Region 5 in Washington D.C. in 2000 as a senior trial attorney/specialist and handled high-profile regional litigation. In 2005, Ms. Watts transferred to the Office of Appeals and was then promoted to a supervisory position in 2008. She was named Deputy Director of the Office of Appeals in 2017. Ms. Watts also served as Acting Deputy Chief Counsel for Board staff in 2019. Ms. Watts received her bachelor’s degree from the University of California at Davis in 1992 and her Juris Doctor degree from the University of Pennsylvania Law School in 1997. “Elicia has proven throughout her career to be a talented and dedicated public servant with a strong commitment to the National Labor Relations Act and the Agency,” said General Counsel Jennifer Abruzzo. “For over 25 years, she has dedicated herself to advancing the Agency’s mission and I know she will continue to do so as she assumes her new role.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.