As the National Labor Relations Board (NLRB) undergoes shifts in leadership and policy direction, employers must quickly adapt to a changing legal landscape. In a recent Venable webinar, labor law professionals discussed how businesses should prepare for key updates of employer-employee communication, independent contractor classifications, and handbook policies.
One key change discussed was the growing restrictions on employer-led meetings about unionization. Under the current NLRB stance, any meeting where employees feel compelled to attend, especially those scheduled during work hours, may be considered unlawful. Partner Beth Ann Lennon advised employers to clearly communicate that attendance at such discussions is voluntary and that no records will be kept, to avoid potential unfair labor practice charges
Another pressing issue is the classification of independent contractors, which has fluctuated between administrations. Under the Biden administration’s Atlanta Opera, Inc. decision, the NLRB de-emphasized entrepreneurial opportunity in determining whether a worker is a contractor or an employee, making it harder for businesses to classify workers as independent.
However, as counsel Karel Mazanec noted, the NLRB is expected to revert to the Trump-era SuperShuttle DFW test, which placed greater weight on a worker’s ability to make independent business decisions. Employers were advised to stay cautious, as multiple government agencies, including state labor departments, use different classification standards, potentially subjecting businesses to overlapping and conflicting regulations.
Beyond classification rules, the webinar also highlighted a significant shift in employee handbook policies. Counsel Allison Gotfried emphasized that recent NLRB rulings now scrutinize workplace rules more closely, particularly policies on personal conduct, confidentiality, and non-disparagement agreements. The Stericycle decision in 2023 established that any rule that could be perceived as discouraging employees from discussing working conditions or unionizing could be deemed unlawful. This means that even standard handbook language must be carefully reviewed to ensure compliance.
As Lennon and her colleagues noted, while these policies remain in flux, businesses should take a proactive approach by reassessing workplace policies and consulting legal counsel to avoid costly violations.
To learn more about upcoming webinars or watch past recordings from our series, Transition Outlook: What to Expect from the Second Trump Administration, click here. The weekly webinar series runs through March 2025.