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NLRB Decisions Tip the Balance in Favor of Employers

By William Vogeler, Esq. on December 29, 2017 | Last updated on March 21, 2019

Changes in the law often occur more subtly through administrative processes than through the legislative or judicial branches of government. In 2017, that happened in employment law.

While President Trump wrestled with the courts over his executive orders, a change was taking place at the National Labor Relations Board. As Senators scrutinized the president's picks for the judiciary, a new general counsel quietly took over at the NLRB.

Peter B. Robb began a four-year-term in November, and already the NLRB Board has reversed eight years of employment developments under President Obama. The changes will affect more than 100 million workers and 60 million independent contractors.

Independent Contractors

In Hy-Brand Industrial Contractors, the Board restored the definition of independent contractor consistent with Section 2(3) of the Nationals Labor Relations Act, which excludes "independent contractors" from the definition of "employees."

The decision reversed the Browning-Ferris standard, which made companies potentially responsible for other employers' workers when there was a "joint employer" finding. That standard, set in 2015, damaged industries that relied on franchise services, such as hotel workers.

Employee Policies, Handbooks

In Boeing, the Board overruled the Lutheran Heritage standard because it prevented the agency from giving "meaningful consideration to the real-world 'complexities' associated with many employment policies, work rules, and handbook provisions."

Employers now have "more leeway in enacting workplace rules," even if they have an adverse impact on employees' rights.

Unions and Health Care Benefits

In Raytheon Network Centric Systems, the Board reversed an administrative law decision that had complicated changes to healthcare benefits.

The new ruling enables employers to make changes to healthcare packages without collective bargaining -- so long as they are consistent with past practices between the employer and the union.

Before the new rulings, the new general counsel had specifically identified the "significant legal issues" in the cases that the Board then overturned. It took less than one month to become law.

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