News & Analysis

NLRB General Counsel announces priorities. Jennifer A. Abruzzo, General Counsel for the National Labor Relations Board (NLRB), in August announced her offices priorities, including an examination of cases and subject matter areas in which, in the last several years, the Board overruled precedent. In the Mandatory Submissions to Advice Memorandum, Abruzzo listed 11 NLRB case areas that she identifies as doctrinal shifts away from previous Board precedent. Those cases involve employer handbook rules, confidentiality provisions in separation agreements, defining the scope of protected concerted activity, union access, and jurisdiction over religious institutions. Other subject areas she would like to examine include cases involving Weingarten rights, employee status, mutual aid or protection, and employer duty to recognize and bargain.

California has recently enacted or amended COVID-19 employment laws. Some of the laws have broad applicability. For example, Assembly Bill (AB) 1577 amends California's tax treatment of various loans related to the COVD-19 pandemic. Further, Senate Bill (SB) 93 provides a comprehensive framework for some employers to rehire employees who were laid off because of the pandemic.

Under California's discrimination laws, a prevailing employer may not be awarded attorneys' fees or costs "unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." Does the same rule apply if an employee files an action in court and the employer successfully forces the employee into arbitration?

The Occupational Safety and Health Act's (OSH Act) General Duty Clause requires employers to provide a safe and healthful work environment for all covered workers, which includes protecting them against workplace violence. With many employees continuing to work remotely because of COVID-19, employers have let their guard down. But the physical, mental, and emotional stresses resulting from the pandemic mean you need to be prepared for conflicts now more than ever before.