General Counsel Abruzzo Issues Memo on Harmonizing the NLRA and EEO Laws

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. General Counsel Abruzzo Issues Memo on Harmonizing the NLRA and EEO Laws 01/16/2025 11:23 AM EST January 16, 2025 Today, NLRB General Counsel Jennifer Abruzzo issued a memo to all field offices on the harmonization of the National Labor Relations Act (NLRA) and federal equal employment opportunity (EEO) laws. The memorandum emphasizes the importance of complying with all requirements of the NLRA and the EEO laws and offers suggestions in certain key areas on how to effectuate compliance and ensure that employees receive full protections under the laws. Specifically, it addresses and provides examples for complying with both bodies of law in three key areas—workplace civility rules, investigative confidentiality policies, and employee speech or conduct in the context of NLRA-protected activity that could potentially implicate federal EEO law. “In workplaces across the country, the NLRA and the EEO laws routinely operate in harmony, often in furtherance of shared goals and with reliance on shared principles. Such harmonization is possible because neither body of law sets forth absolutes in areas of potential overlap. Each leaves space for the other to operate,” said General Counsel Abruzzo. “Regulated parties thus can and must understand and comply with both sets of laws. Importantly, they should not purport to invoke their obligations under one to avoid their responsibilities under the other.”

NLRB General Counsel Issues Updated Representation Case Guidance

January 17, 2025 Today, NLRB General Counsel Jennifer Abruzzo issued updated guidance on representation cases, including an updated version of the Office of the General Counsel’s Outline of Law and Procedure in Representation Cases (“Outline”), the Casehandling Manual Part Two on Representation Proceedings, and an Operations-Management Memorandum. The Outline is a guidance document detailing developments in Board election and representation law and serves as a research tool. Originally issued in the early 1960s, the last major revision to the Outline was in 2017, and the NLRB has issued updated supplements for each subsequent year. The 2025 revision includes developments related to: jurisdiction, unit clarification petitions, and unit-determination and community-of-interest principles, among others. The Outline also reflects recent rulemaking by the Board. The 2025 Outline was edited by Terence G. Schoone-Jongen, Director of the Board’s Office of Representation Appeals. The Outline and other resources can be found under “Manuals and Guides” on the NLRB’s website. General Counsel Abruzzo also issued an OM Memorandum to all Field Offices related to updating the Casehandling Manual Part Two and summarizing Agency procedures regarding mail ballot elections. The memo also clarifies processes regarding RM petitions, and incorporates the changes resulting from the Board’s Fair Choice-Employee Voice Rule. “I have no doubt that the Outline will prove to be an invaluable resource for labor law practitioners, workers and their representatives, employers, academics/legal researchers and other members of the public,” said General Counsel Abruzzo. “Overall, these resources will assist greatly in effectuating our important mission of protecting workers’ rights to engage together and collectively bargain through representatives of their free choosing.”

Jenkins v. Dermatology Management

An arbitration agreement between a worker and employer was procedurally unconscionable where it was pre-signed by a representative of the employer who was not present when the worker received it, as a reasonable person in the worker’s position would have concluded that the agreement was a take-it-or-leave-it condition of employment that could not be modified or refused; a complaining party need not show it tried to negotiate standardized contract terms to establish procedural unconscionability. The agreement was substantively unconscionable where it required the worker to arbitrate all of her claims against the employer but exempted certain claims by the employer, the agreement shortened the statute of limitations for the worker’s claims, it required the parties to equally share the costs of arbitration, and it limited the scope of discovery. Jenkins v. Dermatology Management - filed Nov. 20, 2024, publication ordered Dec. 19, 2024, Second District, Div. Six Cite as 2024 S.O.S. 3823 Full text click here >An arbitration agreement between a worker and employer was procedurally unconscionable where it was pre-signed by a representative of the employer who was not present when the worker received it, as a reasonable person in the worker’s position would have concluded that the agreement was a take-it-or-leave-it condition of employment that could not be modified or refused; a complaining party need not show it tried to negotiate standardized contract terms to establish procedural unconscionability. The agreement was substantively unconscionable where it required the worker to arbitrate all of her claims against the employer but exempted certain claims by the employer, the agreement shortened the statute of limitations for the worker’s claims, it required the parties to equally share the costs of arbitration, and it limited the scope of discovery. Jenkins v. Dermatology Management - filed Nov. 20, 2024, publication ordered Dec. 19, 2024, Second District, Div. Six Cite as 2024 S.O.S. 3823 Full text click here >http://sos.metnews.com/sos.cgi?1224//B333759.

Winston v. County of Los Angeles

Trial court erred in denying successful whistleblower retaliation litigant's Labor Code Section 1102.5(j) attorney fees' request when amended provision could be applied retroactively. READ MORE

Trujillo v. J-M Manufacturing - filed Dec. 2, 2024, Second District, Div. Eight

Civil Procedure Code of Civil Procedure §1281.98(a) was inapplicable where the parties did not submit to arbitration pursuant to any pre-dispute agreement; the drafting party for purposes of §1281.98 is the employer or company that drafted the pre-dispute arbitration agreement binding the employee. Trujillo v. J-M Manufacturing - filed Dec. 2, 2024, Second District, Div. Eight Cite as 2024 S.O.S. 3783 Full text click here >http://sos.metnews.com/sos.cgi?1224//B327111

Gonzalez v. Nowhere Beverly Hills - filed Dec. 3, 2024, Second District, Div. One

Employment Law Equitable estoppel barred a worker from avoiding arbitration with corporate entities related to his direct employer, with whom he had an arbitration agreement, where the only possible liability for those other corporate entities was his theory that they were joint employers who shared in his direct employer’s legal obligations. Gonzalez v. Nowhere Beverly Hills - filed Dec. 3, 2024, Second District, Div. One Cite as 2024 S.O.S. 3793 Full text click here >http://sos.metnews.com/sos.cgi?1224//B331083.

Board Rules Captive-Audience Meetings Unlawful

November 13, 2024 Today, the Board issued a decision in Amazon.com Services LLC, ruling that an employer violates the National Labor Relations Act by requiring employees under threat of discipline or discharge to attend meetings in which the employer expresses its views on unionization. Overruling Babcock & Wilcox Co., 77 NLRB 577 (1948), the Board explained that such meetings—commonly known as captive-audience meetings—violate Section 8(a)(1) of the Act because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 rights. However, the Board made clear that an employer may lawfully hold meetings with workers to express its views on unionization so long as workers are provided reasonable advance notice of: the subject of any such meeting, that attendance is voluntary with no adverse consequences for failure to attend, and that no attendance records of the meeting will be kept. The Board articulated several reasons why captive audience meetings interfere with employees’ rights under the Act, thus violating Section 8(a)(1). First, such meetings interfere with an employee’s right under Section 7 of the Act to freely decide whether, when, and how to participate in a debate concerning union representation, or refrain from doing so. Second, captive audience meetings provide a mechanism for an employer to observe and surveil employees as it addresses the exercise of employees’ Section 7 rights. Finally, an employer’s ability to compel attendance at such meetings on pain of discipline or discharge lends a coercive character to the message regarding unionization that employees are forced to receive. The employer’s ability to require attendance at such meetings demonstrates the employer’s economic power over its employees and reasonably tends to inhibit them from acting freely in exercising their rights. The Board made clear that this change in the governing standard will be applied prospectively only, to appropriately accommodate the reasonable reliance employers may have previously placed on Babcock & Wilcox. “Ensuring that workers can make a truly free choice about whether they want union representation is one of the fundamental goals of the National Labor Relations Act. Captive audience meetings—which give employers near-unfettered freedom to force their message about unionization on workers under threat of discipline or discharge—undermine this important goal,” said Chairman Lauren McFerran. “Today’s decision better protects workers’ freedom to make their own choices in exercising their rights under the Act, while ensuring that employers can convey their views about unionization in a noncoercive manner.” Members Prouty and Wilcox joined Chairman McFerran in issuing the decision. Member Kaplan dissented.