The National Labor Relations Act ("N.L.R.A.") protects employees from adverse actions of their employees under certain circumstances. 29 U.S.C. § 157 gives employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.Right of Employees as to Organization, Collective Bargaining, Etc., 29 U.S.C. § 157 (2015). In other words, 29 U.S.C. § 157 allows employees to engage in activities for the purposes of improving work conditions or voicing disapproval towards their employers.

After a dispute arose between a particular employer and employee, the employee attempted to pursue his or her claims as a class action. The employer sought to compel individual arbitration, and the circuit courts split on whether contracts mandating individualized arbitration violates the NLRA, 29 U.S.C. § 157, by barring employees from engaging in “concerted acvitit[y].” Writing for a 5-4 majority, Justice Gorsuch explained that the task before the Court was determining whether the Federal Arbitration Act, 9 U.S.C. §§ 1 et al. (FAA) could be read in harmony with the NLRA.

le applicants over the age 60. (EEOC v. iTutorGroup, Inc. et al, Case No. 1:22-cv-2565, E.D.N.Y)). On August 9, 2023, parties filed a joint notice of settlement and a request for approval and execution of a consent decree. This appears to be the first settlement of an AI discrimination lawsuit brought by the EEOC and there are likely more to come.National Labor Relations BoardThe EEOC is not the only “sheriff” flashing its badge and targeting employer use of AI. The National Labor Relations Board (NLRB or Board), which enforces the National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§151-169, has identified certain emerging technologies employing AI as potentially running afoul of Section 7 of the NLRA.Section 7 of the NLRA, which covers most private-sector employers irrespective of whether they are unionized or not. It guarantees employees "the right to... engage in... concerted activities for the purpose of.... mutual aid or protection” as well as the right to refrain from such. 29 U.S.C. §157. Depending upon the partisan makeup of the five-member NLRB, the Board has expansively read Section 7 to protect such activities as employees discussing their wage rates with coworkers, see, e.g., Lowes Home Centers, L.L.C. v. NLRB, 850 F. App'x 886, 887 (5th Cir. 2021), and employee comments on social media regarding workplace complaints. Hispanics United of Buffalo, Inc., 194 L.R.R.M. (BNA) 1303, 2012–13 NLRB Dec. (CCH) P 15656, 2012 WL 6800769 (N.L.R.B. 2012).On October 31, 2022, the General Counsel of the National Labor Relations Board (NLRB) released Memo Number GC 23-02. Nat’l Lab. Rel. Bd., https://www.nlrb.gov/guidance/memos-research/general-counsel-memos (last visited Aug. 3, 2023). The memo, entitled “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights,” urges the Board to find electronic monitoring and automated or algorithmic management practices illegal under settled Board law, if these practices interfere with p

The Board’s 2019 Amnesty International decision was one of several Trump-era rulings involving “protected concerted activity” targeted for review by the Board’s current General Counsel Jennifer Abruzzo in Memorandum 21-04 (“Mandatory Submissions to Advice”). The diverging results in American Federation for Children and Amnesty International each turned on answering when, if ever, a statutory employee seeking to support a nonemployee is acting for the purpose of “mutual aid and protection” within the meaning of the NLRA.“Mutual Aid and Protection” Under Amnesty InternationalSection 7 of the NLRA gives employees the right “to engage in . . . concerted activities for the purpose of . . . mutual aid and protection.” 29 U.S.C. § 157 (emphasis added). Employee conduct protected by this statutory provision requires the employee’s activity be both “concerted” and for “mutual aid and protection.”In Amnesty International, the Board considered whether employees who joined a petition seeking pay for their employer’s unpaid interns engaged in protected Section 7 activity. The then Republican majority determined they had not. According to the Amnesty International Board: “Activity advocating only for nonemployees is not for ‘other mutual aid or protection’ within the meaning of Section 7.” Because Amnesty’s unpaid interns did not qualify as statutory employees under Section 2(3) of the NLRA, their coworkers’ efforts to help them gain paid wages were not undertaken for “mutual aid and protection,” and thus were not protected under Section 7.American Federation for Children Takes a Much Broader View of “Mutual Aid and Protection” Based on Principles of SolidarityThe Board’s 3-1 American Federation for Children decision purp

[co-author: Taylor Horn, Summer Associate]National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo recently issued a memorandum stating that most non-compete agreements violate the National Labor Relations Act (NLRA). Abruzzo’s opinion is not the official opinion of the NLRB itself and does not have the force of the law behind it. However, it will still impact the cases submitted by the NLRB’s regional offices, and may encourage plaintiff’s attorneys to advise their clients to file charges with the NLRB to challenge non-compete agreements.Section 7 of the NLRA gives most private sector nonsupervisory employees the right “to form, join, or assist in labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and [also] the right to refrain from any or all such activities.” 29 U.S.C. §157. In her memorandum, Abruzzo explains her view that non-compete agreements impede employees’ rights under Section 7 of the NLRA to collectively bargain, self-organize, join labor organizations, and engage in related activities. She reasons that, by impeding these rights, non-compete agreements violate Section 8(a)(1) of the NLRA which states that an employer cannot “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Since non-compete agreements interfere with these Section 7 employee rights they thereby violate Section 8(a)(1).A non-compete agreement is a contract between an employer and an employee that prevents the employee from competing with the employer by barring employees from accepting related jobs or operating relevant businesses after they leave their employer. Abruzzo explains her view that non-compete agreements “chill” employees’ ability to better their working conditions by preventing employees from seeking out superio

her view that the “proffer, maintenance, and enforcement of [non-compete] agreements” violates Section 8(a)(1) of the National Labor Relations Act. While the Memorandum leaves significant questions unanswered, it unequivocally puts employers on notice that the overbroad use and enforcement of non-competes by employers may run afoul of the Act as enforced by the NLRB.Congress enacted the National Labor Relations Act in 1947 for a variety of purposes, including prescribing the “legitimate rights of both employees and employers in their relations affecting commerce” and protecting the “rights of individual employees in their relations with labor organizations.” 29 U.S.C. § 141. Section 7 of the Act protects the rights of employees to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. It is unlawful for employers to interfere with, restrain, or coerce employees in their exercise of such rights. 29 U.S.C. § 158(a)(1). Violations are subject to civil and criminal penalties under the Act. Notably, while the Act applies to both unionized and non-unionized workforces, it does not apply to supervisors, who are defined to include employees who have authority to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action,” as long as exercising such authority requires “the use of independent judgment.” 29 U.S.C. § 152(11).According to the Memorandum, non-competes “reasonably tend to chill employees” in the exercise of their rights under the Act. Non-competes do so where they “could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunit

On May 30, 2023, the federal government continued its crusade against employee non-compete agreements.Jennifer A. Abruzzo, the NLRB’s General Counsel, issued a Memo to all Regional Directors, in which she stated that, absent limited circumstances, the “proffer, maintenance, and enforcement of [employee non-compete] agreements violate Section 8(a)(1) of the [NLRA].” TheNLRA protects employees’ “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Employers commit an unfair labor practice if they interfere with employees’ rights under the NLRA. In her Memo, Ms. Abruzzo opines that non-compete agreements are overbroad and “chill” employees’ exercise of their NLRA rights absent exceptional circumstances. Her rational is that the threat of being discharged coupled with the denial of other employment opportunities will hinder employees from engaging in protected activity.She outlined five situations in which non-competes could violate employees’ rights under the NLRA:Non-competes chill employees from concertedly threatening to resign to demand better working conditions because, absent other employment opportunities, employees would view such threats as futile.Non-competes chill employees from actually carrying out the threat to resign to secure improved working conditions.Non-competes chill employee from seeking or accepting employment with a local competitor to obtain better working conditions.Non-competes chill employees from so

ty stated it does “not mean to imply that a broad order is only available in cases involving the same degree of habitual recidivism [as the employer in Noah’s Ark]”, it appears these extraordinary orders are most likely to occur when a broad order is issued. However, Member Kaplan noted how broad orders have become more frequent, with four being issued in the past year. Under the framework in Noah’s Ark, the General Counsel has a road map for prosecuting employers for ULPs and a new array of remedies to seek, as laid out in the case and in a General Counsel memo issued on September 8, 2021.Employers should be mindful of how they engage with a union as well as with their employees to avoid facing ULP charges and extraordinary remedies. Employers are encouraged to consult with labor attorneys for advice on navigating the NLRA as well as to avoid conduct that might lead to ULP charges or a broad order. Stay tuned for more legal developments from the Biden-era Board. Section 7 of the Act, 29 USC § 157, provides that “[e]mployees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all of such activities ….”

these technologies to interfere with the exercise of Section 7 rights under the [NLRA] by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer,” GC Abruzzo stated in a press release.However, “only lawyers are worried about that,” Mr. Suflas said. “The linchpin is that a reasonable employee would not see monitoring policies as infringing on their NLRA rights, primarily because most employees are not aware of the NLRA,” he explained. Therefore, “the analytical basis [of the memo] is flawed,” he observed.How We Got HereSection 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities” (See 29 U.S.C. § 157). Section 8(a)(1) of the NLRA makes it an unfair labor practice (ULP) for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.(See 29 U.S.C. § 158)In her 9-page memo, GC Abruzzo described various technologies of concern to her that are increasingly being used to closely monitor and manage employees and may infringe an employee’s Section 7 rights. Examples of these practices include employers:recording workers’ conversations and tracking their movements using wearable devices, cameras, radio-frequency identification badges, and GPS tracking devices;monitoring employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.Moreover, some employers monitor employees outside of working time via employer-issued phones or wearable devices, or apps installed on workers’ own devices. GC Abruzzo also noted that pre-employment personality tests and scrutiny

trucks were fully loaded and then called for a work stoppage for 16 drivers, knowing that the timing of the strike would result in the concrete hardening in the dump trucks, causing considerable damage to the trucks. According to Glacier’s filings, the coordinated sabotage produced “complete chaos” where they had to scramble to dispose of the concrete.Glacier filed suit in state court against the union for the destruction of its property under various legal theories. The union filed its own complaint with the National Labor Relations Board (NLRB) that Glacier had committed unfair labor practices and also moved to dismiss Glacier’s court case arguing that the claims were preempted by the NLRA. The trial court dismissed the case.The NLRAThe NLRA protects employees’ concerted activities and prohibits unfair labor practices. Under the NLRA:“Employees shall have the right to … engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” [29 USC §157]“It shall be an unfair labor practice for an employer — to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title” [29 USC §158]So, the question is whether these NLRA provisions, as the federal labor legislation, preempt a state law claim for damages.The Washington State Supreme Court RulingThe Washington Supreme Court ruled that “incidental destruction” of company property during a strike was “impliedly” preempted by and protected by the NLRA and prevented the company from recovering damages. The court noted that the union’s conduct of intentional property destruction was “arguably protected” by the NLRA, so, absent some additional act of violence, the court must yield to the expertise of the NLRB. The opinion discussed how the NLRA would not preempt the state law claims if there had been intimidation or threats of violence. Ultimately, the court determined that Glacier’s trucks were not intentionally destroyed, so no excep