Since the first day she stepped into office, the National Labor Relations Board’s (“NLRB”) General Counsel, Jennifer Abruzzo, has feverishly sought to mold the NLRB, its rules, and policies into the most pro-employee advocate it has ever been. Her accomplishments include implementing new rules surrounding the union election process and the new standard the NLRB uses to assess the legality of employee handbooks, not to mention the new joint-employer rule issued last month – all of this in just the past 12 months. Imagine what pro-employee initiative she will take on next…
Imagine no more. We have just learned what is next on her agenda. She wants to eliminate the requirement that an employee must show they experienced an adverse employment action to prevail in a claim of discrimination under the National Labor Relations Act (a ULP).
A recent article from Bloomberg Law details how this could come to pass, “The National Labor Relations Board’s top lawyer wants to eliminate the current requirement that a worker must be fired, disciplined, or suffered other adverse employment actions for agency prosecutors to prove illegal anti-union discrimination. NLRB General Counsel Jennifer Abruzzo asked for the change in legal standard last week as part of a challenge to an administrative law judge’s decision dismissing allegations that Starbucks Corp. violated federal labor law by denying a worker’s transfer requests because of her union activity.”
Why this Matters?
In order to establish a valid claim of discrimination under most laws, the employee must first establish he/she experienced some type of actual adverse employment action (i.e., a demotion, suspension, termination, or some other form of tangible harm). In recent years the threshold for such harms has gotten lower and lower but it remains a requirement. If Abruzzo has her way, the new threshold will be zero. Removing this requirement will be a seismic shift. Cases that in the past were not pursued because the damages or harm was too insignificant, will now be viable.
While Abruzzo only works under the National Labor Relations Act, a key question is what other agencies might follow suit? For now, the NLRB is the only agency following this new standard. Of course, who else follows is a huge concern.
We will be monitoring this issue closely and provide our readers with updates as they become available.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
