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In January 2021, I made several “way too early” pre-season predictions about then president-elect Joe Biden’s agenda regarding labor and employment. High on President Biden’s wish list was the Protect the Right to Organize Act (“PRO”), which would substantially strengthen labor law to the advantage of employees and unions. Congressional Democrats have been unable to push the PRO Act through Congress so far, but that does not appear to have inhibited the Biden administration’s attempts to bolster organized labor.
Several high-profile unionization efforts at Amazon, Apple, and Starbucks are indicative of a motivated labor movement. The National Labor Relations Board (“NLRB”) recently reported that union representation petitions filed with the NLRB in the first nine months of fiscal year 2022 (October 1 – June 30) were up 56% from the first nine months of fiscal year 2021.
Even employers who are not facing any attempts at organizing their workforce have felt the impact. The Biden administration’s union-friendly agenda appears to be emboldening the NLRB to target all employers, even if their workforce is not unionized. The NLRB’s new general counsel has issued several edicts directing Board agents to seek more severe remedies for violations of labor law, and expressed that Board staff should pursue cases more aggressively in various areas, including employer handbook rules, confidentiality provisions, and employees engaging in protected concerted activities.