As we previously reported here, in numerous dissents issued in 2021, the National Labor Relations Board’s Chair McFerran blasted the Boeing Co. handbook and work rules standard due to her view that it was, for example, “so forgiving to employers that it cannot be reconciled with the Act’s guarantees to employees.” And the NLRB’s top lawyer, General Counsel Jennifer Abruzzo, issued a memorandum instructing regional offices to send cases relating to numerous issues to her office for consideration, including decisions considering the legality of work rules under the Boeing Co. standard. Beyond that, however, General Counsel Abruzzo also directed regional offices to send cases considering whether workers were properly classified as independent contractors under SuperShuttle DFW, Inc.
Thus, it is no surprise that in the last few weeks, the Board issued decisions in which it invited parties and amici to submit briefs relating to both issues: (1) the future of the handbook and rules standards set out in Boeing Co. and later cases, and (2) the appropriate standard for determining whether an individual is an employee or an independent contractor. While the invitations assume the Board will give due consideration to all views relating to these standards, Chair McFerran’s previous views and General Counsel Abruzzo’s agenda make the end-results all but certain. The pendulum is unstoppable.
Handbook and Workplace Rules
In 2017, the Trump Board established a new framework for evaluating...
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