NLRB Enforcement Under Biden Administration: Micro-Unit Standards, Email Communications, Joint Employer Test

The Biden administration and subsequent appointees to the NLRB will revisit several prior administration NLRB decisions, particularly those that overturned Obama-era determinations. President Biden has already replaced the General Counsel, which signals that change is imminent.

The Biden platform states its intention to reinstate Specialty Healthcare, overruled in 2017. In Specialty Healthcare, the Obama NLRB endorsed the concept of "micro-units" when evaluating potential negotiating units. Under this standard, the NLRB presumes a negotiating unit to be composed of employees who perform the same job at the same facility whether or not other employees share an interest with that unit. Organizing efforts can then target smaller groups of employees, allowing a union to expand its representation.

Additionally, the Biden NLRB may reinstate Purple Communications, overturned in 2019. Purple Communications states that employees have a protected right to use work email accounts to organize regardless of employer prohibitions. Reinstating this decision would be a boon for union organizers and require employers to change their email use rules.

Look for the joint employer test to be quickly reinstated. The Browning-Ferris Industries decision expanded the joint employer standard by holding that an employer's status as a joint employer hinges on the employer's reserved right to control employees, directly or indirectly. Employees may assert their right to negotiate with their direct employer and its contracting company, increasing negotiations across various industries, particularly franchise-based.

Finally, Protecting the Right to Organize Act of 2019 (PRO Act) is among the most significant labor bills since the Taft-Hartley Amendments of 1947, and it may pass in the current political climate. Among other things, the PRO Act would substantially alter the test for determining whether an independent contractor is an employee by codifying the California Department of Labor's "ABC" test.

Listen as our authoritative panel of labor and employment attorneys discusses these and other likely changes to the NLRB. The panel will address pitfalls and best practices for employers to comply with the NLRA in coming years.