News & Commentary

January 19, 2022

Fran Swanson

Fran Swanson is a student at Harvard Law School.

NLRB General Counsel Jennifer Abruzzo is asking the Board to revisit several Trump-era precedents that narrowed what’s considered concerted activity for mutual aid and protection, Bloomberg Law reports. The General Counsel’s brief challenges an ALJ’s August dismissal of claims that American Federation for Children—a charter school lobbying organization—illegally fired an employee for speaking out about a supervisor’s anti-immigrant bias and interference with the employee’s former coworker’s work authorization. The ALJ found that this didn’t qualify as protected concerted activity because the employee acted alone and on behalf of someone who was no longer an employee. Among the precedents the General Counsel is asking the Board to reconsider are decisions that narrowed what activity is for mutual aid (Quicken Loans) and who can be the object of that aid (Amnesty International, excluding advocacy on behalf of unpaid interns).

However, this could be slowed by the Board’s emphasis on seeking public input when it considers whether to overturn precedent, an approach that Chair Lauren McFerran discussed in a new interview with Bloomberg Law. While acknowledging that this would be a case-by-case determination, she explained that outside briefing is key to increase transparency and public confidence, which may “increase public acceptance of the [B]oard’s ultimate decisions.” She said that she was most concerned by the previous Board’s decisions to not seek input when it reconsidered a precedent that parties had not asked it to reconsider or when precedent reconsidered was far broader than the narrower issues before the Board. Yesterday, the Board invited briefs in Ralphs Grocery on whether it should overturn two arbitration agreement precedents: a decision allowing gag orders in arbitration agreements under the Act and a decision allowing disclaimers to save agreements that would otherwise be found to unlawfully block a worker’s ability to file charges with the NLRB.

Lyft made the largest one-time political contribution in Massachusetts history with its $14.4 million donation to a committee supporting a ballot measure that would allow rideshare and delivery companies to continue classifying drivers as independent contractors, the Boston Globe reports. The Coalition to Protect Workers’ Rights say companies are trying to “buy a giant loophole.” The ballot measure is modeled off of Proposition 22 in California, which—at $201 million—was the most expensive ballot initiative in that state’s history. The committee, known as Flexibility and Benefits for Massachusetts Drivers, has hired political consulting firms with deep roots in Democratic politics and the newly formed Conan Harris & Associates, led by Congresswoman Ayanna Pressley’s husband. Pressley has been a vocal supporter of gig workers and has argued that they are misclassified as independent contractors. Proponents of the measure collected enough signatures to get two questions to the Massachusetts Legislature (one includes language on required safety training), but will likely only move forward with one on the ballot. Without action from the Legislature, they’ll need an additional 13,374 signatures by July 6th to get the question on the ballot. Massachusetts is also suing both Lyft and Uber for misclassifying drivers under current state law.

Workers at Activision Blizzard maintain that the company’s acquisition by Microsoft won’t stop their organizing efforts, Polygon reports. The acquisition, which may raise antitrust concerns, comes after months of scrutiny of Activision Blizzard’s horrific hostile work environment, which one worker described as an “alcohol-soaked culture of sexual harassment.” The EEOC filed a complaint in September alleging that the company subjected its employees to pregnancy discrimination, sexual harassment, and retaliation. Workers at the company’s Raven Software are on the fifth week of a strike to protest layoffs. The ABK Workers Alliance was formed in August, and says that it will continue to advocate for the wellbeing of workers and attempt to form a union “[w]hatever the leadership structure of the company” is.

Finally, the AFL-CIO has called on GM and labor authorities in Mexico to ensure fair election for the over 7,000 workers at the company’s Silao plant on February 1st and 2nd. The workers will vote on new union representation, after an agreement considered by many to be a “protection contract” was thrown out under a Mexican labor reform that underpinned the USMCA and an earlier attempt at a legitimation vote was annulled because of irregularities. Among other steps, the AFL-CIO is asking the Mexican labor authority to publicly clarify rules governing each stage of the process and demanding that GM to ensure unhindered voting access and stop targeting independent union activists.

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