We Are on the Brink of Change
Labor Law Under President Biden’s Administration
During President Biden’s campaign, he described himself as a “union man.” We are nearing the first 100 days of President Biden’s presidency, and his appointments to the NLRB and the U.S. Department of Labor (“DOL”) are consistent with that description. He has been appointing pro-union representatives including current or former state and federal officials who are sympathetic with labor unions to both agencies. The new Secretary of Labor, Marty Walsh, previously served as a construction trades union official before becoming the Mayor of Austin and before moving into his current position as Labor Secretary.
The majority of the five-member National Labor Relations Board will flip to the Democrats when William Emmanuel’s term expires on August 27, 2021, and when President Biden fills the vacant open Board seat. The new General Counsel of the NLRB, Peter Sung Ohr, has already made decisions supportive of union positions. Mr. Ohr is a prosecutor of unfair labor practice charges and significantly influences NLRB policy and enforcement. Once the NLRB has a Democratic majority, in combination with the new General Counsel, it can be expected that many of the decisions made during the Trump administration giving employers more flexibility, will be reversed. A few examples of the expected outcomes as a result of reversals of decisions made by the Republican dominated NLRB are:
- There will be limitations on an employer’s right to insist on confidentiality of witness statements and workplace investigations.
- Before the first collective bargaining agreement is signed, employers will be required to bargain over discretionary management decisions, such as discipline.
- Employers will be required to provide employee access to an employer’s electronic communications systems for communications regarding protected concerted activity, which would include union organizing.
- Permissible employee handbook policies will be diminished because of the view that the policies restrict an employee’s right to engage in protected concerted activity.
