I had a great intro all ready for this week. I really did. WXYZ.com reported last week that Monica, a Detroit woman, took home a free puppy, only to learn days later that it was not a puppy at all, but a hyena.
I was about to share this great piece of investigative journalism with you when I was hit with this surprise: The woman’s story is now in doubt, and WXYZ has retracted the story. Thanks to the Wayback Machine, you can read the original story here and (to my great disappointment, because I so badly wanted this to be true) the retraction here.
Sometimes we are given something that seems wonderful — say, a puppy, or even a fun story about a woman who mistook a hyena for a puppy — but then it gets taken away. For all of you who were pleased with any NLRB pro-business decisions over the past four years, get ready to see those taken away too.
Last week new NLRB General Counsel Jennifer Abruzzo issued a Memo listing roughly 40 decisions and principles that she’d like to undo. She has a more diplomatic way of saying it — let’s just say we’ll “carefully examine” these. But expect many of these principles to be toast, now that the Board features a 3-2 Democratic majority.
You can see the full list here, but I’ll focus on three:
(1) “Cases involving the applicability of SuperShuttle DFW,” a case that made it easier to be classified as an independent contractor. You can read my post about SuperShuttle here.
(2) “Cases involving the applicability of Velox Express,” a case in which the NLRB ruled that independent contractor misclassification, by itself, is not an automatic unfair labor practice. You can read my post about Velox Express here.
(3) “Cases involving the applicability of UPMC,” which relates to the standard for the Board to accept settlements voluntarily entered into by the parties. What she’s really talking about here is the McDonald’s franchise joint employer case, in which her predecessor as NLRB General Counsel settled a case against McDonald’s that she (and an Administrative Law Judge) didn’t think should have been settled. The NLRB eventually approved the settlement. Here is an amicus brief I wrote for the Restaurant Law Center in that case, arguing that the settlement should be approved.
The General Counsel for the NLRB is the equivalent of its chief prosecutor. These are Abruzzo’s priorities. With a sympathetic 3-2 majority on the Board, you can be sure that many of these desired changes will take place.
Like a good hyena story, the pro-business Board decisions from the last four years aren’t likely to last.
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© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.