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Developments in Labor and Employment Law in the United States

Risa L. Lieberwitz
p. 230-233
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États-Unis [fr]

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I - United States Supreme Court

  • 1 141 S.Ct. 2063 (2021).

1The appointments of three Supreme Court justices under the Trump Administration has moved the Court far to the political right. This was reflected in the Court’s 6-3 decision in Cedar Point Nursery v. Hassid1, striking down a California state regulation that authorized union organizers to enter agricultural employers’ private property for up to three hours a day during non-working time, 120 days per year, to talk with the employees about working conditions and unionization. The Court held that the state law violated the « takings clause » of the Fifth Amendment of the US Constitution, which allows the government to appropriate private property for a public use if the government pays just compensation to the private owner. The majority concluded that the state law’s grant of access to the union organizers gave them a « right to invade » the agricultural employers’ property, which constituted an uncompensated « physical taking » by the state government.

2The three dissenting justices criticized the implausible use of the « takings clause » in this decision. The state regulation did not appropriate private property. Rather, it was a governmental regulation of the employer’s « right to exclude » union organizers from access to its property for the purpose of talking with employees about their rights to unionize.

  • 2 29 U.S.C. Sec. 151, et seq.
  • 3 Lechmere, Inc. v. NLRB, 502 U. S. 527 (1992); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956).

3Most private sector employees are covered by the National Labor Relations Act (NLRA)2, the federal law that establishes their rights to unionize, collectively bargain, and engage in other concerted activity to improve their working conditions. California could adopt the state regulation considered in Cedar Point Nursery because agricultural employees are excluded from coverage under the NLRA. In two earlier decisions, the US Supreme Court interpreted the NLRA to allow private employers to bar access to their property by union organizers, unless the organizers had no alternative means to reach the employees away from the workplace, or unless the employer discriminated against unions in its property access policies3.

4This judicial interpretation of the NLRA has been criticized for the imbalance of power it gives to employers to create obstacles to employees’ rights to unionize. Yet, the conservative Court in Cedar Point Nursery chose not to apply even this restrictive approach to interpret the scope of the California state regulation, opting instead to strike it down completely under a strained interpretation of the Fifth Amendment’s takings clause.

  • 4 NCAA v. Alston, 141 S.Ct. 2141 (2021).
  • 5 See A. Liptak and A. Binder, « Supreme Court Backs Payments to Student Athletes in N.C.A.A. Case », (...)

5In a decision concerning student athletes, the US Supreme Court held that the National Collegiate Athletic Association (NCAA) and its member institutions violated federal anti-trust law by restricting education-related compensation, such as graduate student scholarships, that colleges and universities may offer the student-athletes who play for their teams4. However, the Supreme Court did not address the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance. Given the commercial benefit that colleges and universities receive from inter-collegiate sports competition, the NCAA’s assertions that their rules protect amateurism in college sports have worn thin5.

  • 6 D. Wolken, « Opinion : Allowing College Athletes to Unionize Could be the Answer to the NCAA’s Prob (...)

6It seems likely that pressure will build on NCAA to change its rules to allow colleges and universities to offer other forms of compensation to student athletes. The labor-related implications of such changes include the potential for student athletes to assert their rights to unionize as employees under the NLRA or state public employment statutes6.

II - National Labor Relations Board

  • 7 J. A. Abruzzo, General Counsel, Mandatory Submissions to Advice, Memorandum GC 21-04 (Aug. 12, 2021 (...)

7As of August 28, 2021, three of the five-members on the National Labor Relations Board are Democratic appointments. The two new members, appointed by President Biden and confirmed by the Senate, are former labor union attorneys. Additionally, Biden appointed and the Senate confirmed a new General Counsel of the NLRB, who has issued a memorandum identifying issues that she is prioritizing in cases that may come before the current Board7. These issues include recent decisions by the Trump-era Board restricting employee rights under the NLRA and overruling earlier Board precedents. Among the recent Board decisions that the General Counsel seeks to change are two cases restricting the scope of employees covered by the NLRA.

  • 8 367 NLRB no. 75 (2019).

8In Supershuttle DFW, Inc.8, the Board made it easier for employers to classify workers as independent contractors excluded from the definition of employees under the NLRA.

  • 9 369 NLRB no. 98 (2020).

9In Bethany College9, the Board adopted a legal test that will exempt virtually all religiously-affiliated colleges or universities from jurisdiction of the NLRB. As a consequence of this decision, even faculty teaching secular subjects in religiously-affiliated colleges or universities will have no rights to unionize under the NLRA.

10Other precedents of interest to the General Counsel include decisions from the Trump-era Board restricting employees’ rights to communicate with each other and with unions about workplace issues, including their rights to organize.

  • 10 368 NLRB no. 143 (2019).

11In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino10, the Board held that employers may prohibit employees from using employer-owned information-technology, including employer-owned email, for non-work-related communications.

  • 11 365 NLRB no. 154 (2017).
  • 12 See, e.g., Altstate Maintenance, LLC, 367 NLRB no. 68 (2019).

12In The Boeing Co.11, the Board adopted a standard that expands the power of employers to adopt rules, policies and employee handbook provisions that limit the ability of employees to express themselves at work or on social networks, including employer rules requiring them to respect « basic standards of civility ». These issues relate, as well, to defining the scope of protected concerted activity, which was narrowed by Trump-era Board decisions12.

13Other issues that the General Counsel may ask the current Board to revisit concern Trump-era Board decisions placing excessive weight on employer private property interests to the detriment of employee rights under the NLRA.

  • 13 368 NLRB 2 (2019).

14These cases include UPMC13, where the Board held that an employer may bar union representatives from access to public areas of the workplace, such as a hospital cafeteria where the organizers might have lunch with hospital employees and discuss unionization.

  • 14 2019 NLRB LEXIS 468 (2019).

15In Bexar County Performing Arts Center Foundation14, the Board held that a private business owner may refuse access to its private property by off-duty employees of a contractor business if the contractor’s employees do not work regularly and exclusively on the property and if those off-duty employees have a reasonable alternative means to communicate their message.

III - COVID-related Issues at the Workplace

  • 15 EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (...)

16One pandemic-related workplace legal issue receiving attention is whether employers may require employees to be vaccinated for Covid-19. Given the way in which vaccinations have become politicized in the US, this is an issue of great interest. The federal Equal Employment Opportunity Commission (EEOC) has issued a guidance stating that employers may require employees to be vaccinated, although employers must also comply with anti-discrimination laws that obligate employers to provide accommodations to employees who are not vaccinated due to a disability or based on a « sincerely held religious belief »15.

  • 16 Ibid.

17In such cases, wearing a mask or working remotely are examples of possible accommodations. Rather than requiring vaccinations, some employers have adopted incentive programs, such as paid time off to get a vaccination or a bonus for being vaccinated, although such programs must also comply with federal anti-discrimination law16.

  • 17 P. Brown and A. Volberding, « Labor Law, Union Implications for Employer-Mandated Covid Vaccines, B (...)

18In a unionized workplace, employers have a duty to bargain with the union over an employer proposal to make vaccinations a condition of employment, as well as a duty to bargain over the effects of such a requirement17.

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Notes

1 141 S.Ct. 2063 (2021).

2 29 U.S.C. Sec. 151, et seq.

3 Lechmere, Inc. v. NLRB, 502 U. S. 527 (1992); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956).

4 NCAA v. Alston, 141 S.Ct. 2141 (2021).

5 See A. Liptak and A. Binder, « Supreme Court Backs Payments to Student Athletes in N.C.A.A. Case », New York Times, Aug. 6, 2021.

6 D. Wolken, « Opinion : Allowing College Athletes to Unionize Could be the Answer to the NCAA’s Problems », USA Today, May 27, 2021: https://www.usatoday.com/story/sports/columnist/dan-wolken/2021/05/27/allowing-college-athletes-unionize-could-help-solve-ncaa-problems/7476234002/

7 J. A. Abruzzo, General Counsel, Mandatory Submissions to Advice, Memorandum GC 21-04 (Aug. 12, 2021): https://www.nlrb.gov/es/guidance/memos-research/general-counsel-memos

8 367 NLRB no. 75 (2019).

9 369 NLRB no. 98 (2020).

10 368 NLRB no. 143 (2019).

11 365 NLRB no. 154 (2017).

12 See, e.g., Altstate Maintenance, LLC, 367 NLRB no. 68 (2019).

13 368 NLRB 2 (2019).

14 2019 NLRB LEXIS 468 (2019).

15 EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

16 Ibid.

17 P. Brown and A. Volberding, « Labor Law, Union Implications for Employer-Mandated Covid Vaccines, Bloomberg Law News, Jan. 21, 2021.

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Pour citer cet article

Référence papier

Risa L. Lieberwitz, « Developments in Labor and Employment Law in the United States »Revue de droit comparé du travail et de la sécurité sociale, 4 | 2021, 230-233.

Référence électronique

Risa L. Lieberwitz, « Developments in Labor and Employment Law in the United States »Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2021, consulté le 15 juin 2025. URL : http://journals.openedition.org/rdctss/2761 ; DOI : https://doi.org/10.4000/rdctss.2761

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Auteur

Risa L. Lieberwitz

Cornell University, School of Industrial and Labor Relations

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