Legislative Director Update 7/30/18

Legislative Director Update 7/30/18

A brief Legislative Director update below.

  • NLRB: The General Counsel’s office of the NLRB recently released additional Advice Memorandums. One of the memos focuses on an organization’s rules restricting the use of intellectual property and app user’s information. The General Counsel’s office found the rules restricting the use of intellectual property and app user information was legal under the board’s new test for evaluating policies. If you are responsible for reviewing and updating policies, I encourage you to review the Advice Memo as it relates to potential violations under the National Labor Relations Act and to gain a better understanding of how the NLRB will evaluate alleged policy language violations. You can access the Memos here: https://www.nlrb.gov/cases-decisions/advice-memos


  • NLRB: Member and democratic appointee to the NLRB Mark Gaston Pearce’s term on the NLRB expires on August 27th. Traditionally the NLRB is made up of three members of the sitting president’s political party and two members of the minority party. That means that the seat Pearce vacates would be filled by a Democrat appointed by Trump. Currently there are three Republican Members and two Democrat Members. However, Trump also has the option not to fill the vacant seat. The Board could operate with four of the five seats filled – only three Members are needed for a quorum. Although having an even number of Board members could increase the possibility of a 2-2 vote, given that three of the four Members would be like-thinking Republicans, that possibility should be minimal.


  • DOL: The U.S. Department of Labor recently formally pulled back the so called persuader rule, an Obama-era regulation that would have made businesses and the consultants they hire for advice on fighting union drives disclose these efforts. As you may recall, a Texas federal judge permanently blocked the rule in November, 2016. To that end, it remains current law that employers who hire lawyers for assistance in providing advice during a union campaign do not have to report the dollars spent on such activities.


  • Immigration: Immigration and Customers Enforcement (ICE) issued a press release on July 24, 2018 confirming that I-9 audits are increasing at a significant clip. We will continue to see a year of increased immigration enforcement. ICE’s Homeland Security Investigations division issued almost 5200 Notices of Inspection since October 2017.


  • Restrictive Covenants: The Antitrust Director signals heightened focus on deterring no-poach agreements in healthcare industry. The Department of Justice’s Antitrust Division has repeatedly reaffirmed its intent to criminally prosecute companies that restrict labor market competition through the use of unlawful no-poach and wage-fixing agreements. If you are in the healthcare industry and would like to read more about this initiative, please click here: https://www.noncompetereport.com/


  • Congress: We were signatories to a SHRM letter urging Congress to support H.R. 4219 in the Workflex in the 21st Century Act. SHRM obtained the signatures of 49 SHRM State Councils and 170 Chapters. The letters were sent to the bill’s sponsor and to all members of the House Committee on Education and the Workforce. You can also access the SHRM Policy Action Center by clicking here: http://www.advocacy.shrm.org/workflex