What Could be New in 2022 for Employers?

By: Attorneys Dean Dietrich and Samuel Bach-Hanson – Weld Riley, S.C.

There is a lot of speculation about the potential changes to labor law principles during 2022. The General Counsel for the National Labor Relations Board (NLRB) spoke recently about her views on important issues that employers may face in 2022. While these are her personal views, they do present potential actions that employers must consider and plan for if they want to be prepared. Here are some considerations:

Expanding Protected Concerted Activities

The General Counsel takes a very expansive view on what are activities are protected under the National Labor Relations Act (NLRA). Common activities like discussion about the COVID-19 vaccine, social justice issues, and political protests may be considered protected activities if discussed by an employee in the workplace. If the employer tries to quash such discussion, these topics could then form the basis for an unfair labor practice. Employers will need to be more careful about how they control comments from employees whether in a union or non­union setting.

Union Card Count

It is suggested that an employer may be required to bargain with a union based solely upon the union providing a number of union cards showing that a majority of the employees want to join a union. This would take away the right of employees to have a private election conducted by the NLRB and an opportunity for the employer to speak against the union. It is hard to imagine that the NLRB would take the position that they can order a company to bargain with the union simply based upon the number of union cards that are signed, but the concept is being discussed by the General Counsel.

Be Careful about the Language in Your Handbook

There has been a significant amount of litigation over the past several years regarding language in a company employee handbook. Decisions have gone back and forth and the latest round of decisions allow an employer to incorporate various provisions in their handbook that address the employee conduct and protect the reputation of the employer. There is concern that items in a handbook such as confidentiality language, non-disparagement clauses, social media commentary, and expectations for respectful and professional conduct in the workplace may be subject to new scrutiny under the current General Counsel. These items may be considered a violation under the NLRA depending upon the language and how the language is applied.

Settlements may be Disastrous

There is a lot of talk about the NLRB taking a very different approach regarding settlement
of disputed claims such as unfair labor practice complaints. It is suggested that the NLRB will not settle for anything less than 100 percent of an apparent backpay award and may require employers to admit that they have violated the NLRA and post a notice of employee rights along with a typical posting about the settlement of a dispute. There is even a suggestion that the NLRB may order the company to hire a person of the union’s choosing if the complainant does not want to return to work. All of this is speculative right now but shows the breadth of considerations that may ramp up enforcement of these labor laws.

Work Stoppages May Abound

We are seeing an increase in work stoppages for various reasons. Some of these are occurring even in a non-union setting when considering the objections to the COVID mandates. Employers will be subject to significant scrutiny if they take adverse action against a striking employee who is doing so to object to employer practices. Employers should be prepared to address work stoppages on various levels.

Joint Employer Versus Independent Contractor

There has been a lot of controversy about joint employer status and whether an individual is jointly employed by the company and the service provider or actually stands as an independent contractor. The law over the past several years has supported independent contractor status and moved away from the potential of a company being considered a joint employer with a service provider. There are comments about reviewing the standard and finding more joint employer arrangements. This opens the door to potential liability for the company based upon the conduct of the service provider. These are just some of the topics being considered by the NLRB under its new leadership. Employers need to think about their position and response to these potential enforcement changes and reach out to legal counsel whenever questions arise.

Whatever 2022 has in store, Dean and Sam are skilled employment lawyers ready to help you and your company tackle it! Contact us today to get started.