The NLRB’s Been Busy

We’ve long previewed the National Labor Relations Board’s (NLRB’s) action on a number of issues, now that Board membership reflects President Biden’s appointees and embodies his pro-labor priorities. In recent weeks, we’ve seen several updates come through from the agency, including:

·        Adding Consequential Damages to Make-Whole Remedies

“Employees are not made whole until they are fully compensated for financial harms that they suffered as a result of unlawful conduct,” NLRB Chairman Lauren McFerran recently said. That is, when there’s evidence proving that an employee suffered direct or foreseeable harm as a result of an unfair labor practice, the harm is now compensable. The harm can take many forms from healthcare expenses, to credit card late fees, even to the loss of a home or car due to an unlawful discharge. Employers should be mindful that this potential penalty marks a real increase in their liability. It’s likely that this change will be challenged in court.

·        Restoring the Obama-Era Bargaining Unit Test

The NLRB has once again modified its standard for “bargaining-unit determination cases where a labor union seeks to represent a unit that contains some, but not all, of the job classifications at a particular workplace,” restoring the Obama-Era rule on that point. Once again, “so long as the petitioned-for unit consists of a clearly identifiable group of employees with a shared ‘community of interest,’ the Board will presume the unit to be appropriate.” What does this mean? Unions and employees will again be able to organize along narrower lines of job classification, reflecting the NLRB’s pro-union priorities.

·        Limiting the Exclusion of Protesting Contractors from a Property

In another reversal of a Trump-era decision, the NLRB also issued an opinion limiting property owners’ ability to remove protesting contractor employees from their property. Unless a protest significantly interferes with the use of the property, or another legitimate business reason exists, a property owner with a contractual relationship with the employees’ employer (or the employer themselves) cannot prohibit protestors from protesting on the property.

2022: The Year of the Strike

We’ve all heard of the Starbucks strikes—from Red Cup Day turned “Red Cup Rebellion” to the recent “Double Down Strike”—but, as it turns out, bargaining and boycotts aren’t just for baristas. From airport employees to hospitality workers, employees across the nation are joining in.


Two key sticking points: wages and working conditions. This is no surprise to anyone who’s been following the headlines. McDonald’s workers protested hazardous working conditions. Dollar General employees went on strike over low wages. Taco Bell employees walked off the job to protest low wages and workplace hazards.

The uptick in collective action started nearly three years ago and seems to be picking up speed—not slowing down. Even states with historically low union participation are seeing an increase in strikes and collective bargaining action.

As we approach the New Year, be aware that collective action isn’t just a coffee-shop condition. Employees of diverse industries are thinking about and advocating for workplace improvements. Proactive and thoughtful employers are rising to meet them. These conversations can be productive and even collaborative with the right plan in place.

Double-Check Your Dress Code

Do you maintain a workplace dress code? If so, read on.

Employers, as you know, have a lot of leeway to craft policies that make sense for their workplaces and workforces. But employers whose policies include a dress code would do well to revisit that code’s requirements in the New Year. Not all dress codes are created equal—and, critically, not all dress codes comply with EEO laws, as a recent Reuters report explains.

Alaska Airlines’ 2020 dress code required “customer-facing Alaska Airlines employees . . . to choose either a male uniform that included a vest and tie and forbids makeup, nail polish and earrings, or a female uniform that include[d] dresses and skirts and allow[ed] a range of makeup and jewelry.” The policy also “prohibited mixing and matching elements of each uniform.” The policy was later updated to require employees with facial hair to wear the male uniform, and to prohibit employees donning the male uniform from using certain shades of lipstick.

Earlier this year, the Washington State Human Rights Commission (HRC) issued a finding of reasonable cause that Alaska Airlines violated Washington state law and discriminated against a non-binary, gender-fluid flight attendant by refusing to exempt them from this dress code. Now, the HRC will endeavor to assist the parties in negotiating a settlement.

Gendered clothing and personal care standards aren’t all employers should be on the lookout for, however. In the last few years, 18 states and nearly a dozen municipalities across the country have enacted CROWN Laws—prohibitions on workplace dress code and hygiene policies that exhibit racial bias by excluding certain hairstyles (like cornrows and braids) from the workplace.

Given the movement in this area, it’s worth reexamining your own dress code’s requirements in early 2023 to ensure your workplace standards comport with local, state and federal law.