Richard Lussier Named Deputy Associate General Counsel in the Division of Advice

Today, National Labor Relations Board General Counsel Jennifer Abruzzo announced the appointment of Richard Lussier as Deputy Associate General Counsel in the Division of Advice. The Division of Advice provides guidance to the Agency’s Regional Offices regarding difficult and novel issues arising in the processing of unfair labor practice charges and coordinates the initiation and litigation of injunction proceedings in federal court under Section 10(j) and (l) of the National Labor Relations Act. Mr. Lussier began his career at the NLRB in 1996 as an attorney in the Division of Advice. He was promoted to supervisory attorney in the Injunction Litigation Branch in 2017. In 2020, Mr. Lussier was named Assistant General Counsel for the Agency’s Injunction Litigation Branch. A Connecticut native, Mr. Lussier graduated from the University of Connecticut in 1991, Quinnipiac University School of Law in 1995, and Georgetown University Law Center in 1997. “Richard is a tremendous attorney who has spent his career upholding the National Labor Relations Act,” said General Counsel Abruzzo. “He’ll continue to be an asset to the Agency in his new role as he continues to effectuate the Act.”

NLRB and OSHA Announce New MOU to Strengthen Health and Safety Protections for Workers

October 31, 2023 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo and Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) at the U.S. Department of Labor Douglas L. Parker executed a Memorandum of Understanding to strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice. Because many worker efforts to improve safety and health in their workplaces are protected under both the Occupational Health and Safety Act (OSH Act) and the National Labor Relations Act (NLRA), the NLRB and OSHA have historically engaged in cooperative efforts and have entered into formal Memoranda of Understandings to engage in interagency coordination since 1975. Today’s agreement expands on the historic interagency coordination by enabling the NLRB and OSHA to closely collaborate by more broadly sharing information, conducting cross-training for staff at each agency, partnering on investigative efforts within each agency’s authority, and enforcing anti-retaliation provisions. The agencies also released a resource on “Building Safe & Healthy Workplaces by Promoting Worker Voice” which provides tools and key references for employers and workers on working collaboratively to create and maintain safe workplaces, including resources on collective bargaining and compliance. “Workplace safety can be a matter of life and death for workers and so the ability to report workplace hazards without fear of retaliation is critically important,” said General Counsel Abruzzo. “Today’s MOU will bolster protections for workers to speak out about unsafe working conditions by strengthening coordination between OSHA and the NLRB on our enforcement efforts.” “Everyone should be able to exercise their legal rights in the workplace without fear of losing their job or other forms of punishment,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This partnership with the National Labor Relations Board will expand both of our agencies’ impact and effectiveness in protecting workers who raise concerns about workplace violations or retaliation.” The MOU is part of the NLRB General Counsel’s interagency coordination initiative to take a whole of government approach to enforcement. As part of the initiative, the NLRB is working closely with worker protection and consumer protection agencies to ensure that the government is coacting and co-enforcing all related laws in the most effective and efficient way, which will ensure workers are fully protected while minimizing employers’ compliance burdens.

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.”