On January 20, 2022, the U.S. Department of Labor’s Bureau of Labor Statistics reported that union membership in the United States had dropped to a historic all-time low. The decline in membership is prompting unions to consider strategies to replenish their depleted ranks with new dues-paying members. Against this backdrop, the National Labor Relations Board’s (NLRB) recent flurry of invitations to file briefs in connection with the reconsideration of existing case law precedent is worthy of close evaluation. Case precedent that appears to be on the Board’s chopping block includes, but is not limited to (1) the legal standard for determining independent contractor status under the National Labor Relations Act (NLRA), (2) the analysis for whether employer work rules violate section 8(a)(1) of the NLRA, and (3) the standard to determine whether confidentiality requirements in mandatory arbitration agreements unlawfully infringe upon employees’ Section 7 rights.

The Board’s decision to accept written submissions on these issues is not an academic exercise. Rather, employers can most certainly expect a myriad of changes broadly impacting labor-management relations. NLRB General Counsel (GC) Jennifer Abruzzo also announced numerous initiatives that would make it easier for unions to organize, dramatically enhance the penalties imposed upon employers in connection with labor law violations, and expand enforcement of alleged unfair labor practices, including the development of...

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