2015 Was a Big Year for the NLRB

The NLRB was extremely active in 2015. It ruled that Browning-Ferris Industries is a “joint employer” of workers hired through a temporary agency; it issued guidelines for employee handbooks; and effective mid-April, it issued new expedited rules and procedures for union representation elections.

Before the Browning-Ferris ruling, the NLRB’s standard for joint employer was not much different than that of other agencies. The key was whether or not both employers exerted control over the terms and conditions of employment. The Browning-Ferris ruling made clear that the question is not whether an employer actually exerts control, but whether it could exert control.

In March, the Board issued guidance on how to create a lawful employee handbook. It is safe to say that a large majority of employers have at least one workplace rule in their handbook that could be perceived as overly broad. Specifically, the NLRB has made it clear that any rule that could chill concerted activity is unlawful, even if that was not the rule’s intent.

One month later the Board’s “Final Rules” regarding expedited union elections took effect. The most noteworthy change was the shortening of the union representation election process from as many as 45 days to as few as 13.

It’s clear the NLRB has been favoring labor in recent years, but it is essentially a political agency, and it remains to be seen whether or not this trend will continue after the presidential election.