Do not undervalue the importance of confidentiality in workplace investigations

After a Costco employee filed a sexual harassment complaint, she and others were required to sign an "Acknowledgement of Confidentiality" form. It prohibited employees from discussing the investigation. 

Later, the company sent a letter instructing her to treat the outcome as confidential, even after the investigation had concluded.

Costco said the practice was necessary to preserve the integrity of the investigation.

A day without associates

BigLaw is under attack—not just from Trump's executive orders targeting law firms that have historically supported his political opponents or oppose his current policies, but from their own employees.

Above the Law reports that associates at some of the nation's biggest law firms are considering going on "recruitment strikes" (i.e., refusing to participate in law student recruiting) if their employers fail to push back against Trump's unlawful orders.

What if these associates take it one step further and actually walk off the job in protest? Would the National Labor Relations Act (NLRA) protect their concerted work stoppage?

This is how NOT to respond to employee complaints

JP Morgan is making waves with its decision to bring employees back to the office five days a week starting in March. But what's making even more waves is its reported crackdown on employee communication about this decision on the company intranet.

Let's talk about why that's problematic from both a legal and practical standpoint:

New NLRB Ruling: Employer "captive-audience speeches" on unionization are now illegal

In a significant decision, the NLRB ruled that requiring employees to attend anti-union meetings under the threat of discipline or termination violates their Section 7 rights. This is a short-term victory for unions and employees—but the landscape may shift again soon.

In Amazon Services LLC, the NLRB held that these mandatory meetings unfairly pressure employees to participate, infringe on their right to choose freely, and create a chilling effect that deters workers from exercising their rights. The Board noted that such meetings amplify an employer's economic power over employees, adding coercion to the message.

How to keep a union out of your business

Workers are organizing at unprecedented rates. From October 1, 2023, to September 30, 2024, the National Labor Relations Board received 3,286 union election petitions, up 27% from the year prior and more than double the number received in 2021. Much of the push comes from service industries like retail, education, and healthcare. Union drives, however, don't start in a vacuum. They happen when employees feel ignored, underpaid, or disrespected.

Here's the hard truth: The best union-avoidance strategy isn't about playing defense or hiring fancy consultants to "bust" a union. It's about being a great employer, period.

This is what an illegal plan closure looks like, and the consequences an employer can face as a result

In December 2020, Quickway Transportation made the decision to close one of its distribution terminals after facing a union organizing drive led by Local 89 of the Teamsters Union. The drivers at the terminal, which served Kroger, had voted to unionize, prompting concerns from Quickway's leadership about potential strikes that could disrupt operations at the distribution center. Fearing financial losses from a possible strike, Quickway chose to terminate its contract with Kroger and ceased all operations at the terminal, laying off all drivers at that facility.

The 6th Circuit upheld the NLRB's finding that Quickway violated the NLRA when it closed its Kroger terminal because the closure was motivated by anti-union animus.

Don't retaliate against unionizing employees

"You're fired!" That's what the Dallas Black Dance Theatre said to its entire company of dancers a mere months after they voted to unionize.

To make matters worse, the employer seemingly admitted its misconduct in a post on its official Instagram page: "It is a decision that DBDT does not take lightly, but one that is necessary to preserve our legacy of professionalism and excellence in dance. Unfortunately, we recently discovered that our dancers engaged in conduct that fails to align with DBDT's standard of performing at the highest level of artistic excellence and violates several of DBDT’s policies."

What does Project 2025 mean for employers? Labor law edition

Today is the 3rd and final part of my series on what Project 2025 means for employers. Today, I examine its proposed impact on the National Labor Relations Act and union-management relations. (You can find parts 1 and 2 here.)

Project 2025 proposes the following seven key changes to the NLRA:

Long live Anchor Brewing! We'll have to wait and see about its labor union. ⚓ 🍻

News broke earlier this month that Hamdi Ulukaya, the billionaire founder of Chobani yogurt, purchased the assets of Anchor Brewing after its former owner, international beer conglomerate Sapporo, had unexpectedly shuttered the brewery nearly a year ago. Anchor was one of the country's few unionized craft breweries. Ulukaya has said that he would hire back as many former employees as possible but didn't know whether the union would be part of his new operations. If he hires enough of the former employees, however, he may not have a choice on the union. That issue will depend on whether Ulukaya's Anchor Brewing is a "successor" of Sapporo's Anchor Brewing.

It's 100% legal to close your business to avoid a labor union

"We have some sad news to share. A process that began last year has reached its conclusion. Today was the last day of service for both cafes of the Wydown, which are now permanently closed." 

That sign hung on the door of both Wydown Coffee Bar locations late last week.

What's so newsworthy about two cafes closing? What if I tell you that the closure happened just five days before their 35 employees were set to vote on unionization?

The employees steadfastly believe that the cafes closed to avoid a labor union. The owners deny their claim and say that they were merely "ready for a change."

One bourbon, one union election, and one Cemex bargaining order

One bourbon, one union election, and one bargaining order … is what an NLRB ALJ told Woodford Reserve Distillery last week. The judge held that the distillery violated federal labor law by undermining its employees' unionization efforts and ordered the distillery to bargain with its employees as their remedy.

YouTuber faces legal challenge against his overly broad severance agreement

"Employer and Employee agree to keep the existence and terms of this Agreement confidential and to not disclose its provisions to anyone.… Employer and Employee further agree not to take actions or make statements, written or oral, that would disparage or otherwise defame the goodwill or reputation of the other."

Those are the confidentiality and non-disparagement terms of the severance agreement that Steven Crowder, a popular right-wing YouTuber, provided to Jared Mittelo, his producer.

And they are why Mittelo has filed an unfair labor practice charge with the NLRB.

President Biden’s proposed 2025 federal budget offers a lot for employers to chew on

If you want to learn about a government's priorities, trace the money. 

President Biden's proposed federal budget for FY 2025 contains significant funding that would impact the workplace.

Bankrupcy, labor unions, and remaining union free

Fair State Brewing, one the nation's first unionized craft breweries, just filed for Chapter 11 bankruptcy protection.

Meanwhile and elsewhere, Aslin Beer Co. just said that it will voluntarily recognize the union petition filed by a group of its taproom employees to join the SEIU.

Evan Sallee, Fair State's founder and CEO, tells Eater than its union has nothing whatsoever to do with the bankruptcy filing.

Baning salary discussion bans

🛑 Employers, for the love of all that is holy, STOP BANNING EMPLOYEES FROM DISCUSSING THEIR WAGES!!! 🛑

A supervisor of subsidiary of Duke University is accused of doing just that, and now the employer is in hot water with the National Labor Relations Board.

According to the just-filed NLRB complaint, the supervisor allegedly instructed workers during a meeting "not to discuss their salaries." When one of those employees later raised "concerns about employees' salaries and equity in pay," they were fired.

Pro-employee vs. Pro-union

"You can't be pro-employee and anti-union."

"If you're pro-employee you should also be pro-union."

Each of these two themes ran through the more than 1,000 comments posted to last week's viral LinkedIn post on Costco's union organizing.

Let me be as clear as I can be. There is absolutely nothing inconsistent about an employer being both pro-employee AND anti-union.

THIS is how you respond to a group of employees organizing and forming a labor union

Competitive salary. Excellent benefits. Great support from management. Collaborative environment. Those are a few of the glowing terms reviewers use to describe Costco on Glassdoor. They are also what help the warehouse club earn a regular spot on Glassdoor's "Top 100 Places to Work" annual report.

Why, then, did a group of Costco workers at one of its stores "overwhelmingly" vote to unionize, making it the Teamsters' first organizing victory at the big-box wholesale retailer in more than 20 years?

Coincidence ≠ causation

An employer terminates a group of 14 employees within six weeks after learning that they were discussing unionizing.

Despite the timing of the mass termination of these employees, the 8th Circuit — in Strategic Technology Institute v. NLRB — reversed and concluded that anti-union animus did not motivate the terminations. 

NLRB publishes (yet another) new joint employment rule

If at first (or second, or third…) you don't succeed, try, try again. That certainly seems to be the NLRB's mantra as it relates to its joint employment rule.

Joint employment is when one employer is responsible for the legal sins of another because of a commonality of employees. Under the standard newly announced by the NLRB, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees' following terms and conditions of employment:

Is this what the future of union organizing looks like?

Last week, the employees of Creature Comforts Brewing Co. voted by a margin of 32-21 to reject the Brewing Union of Georgia as their bargaining representative and for their workplace to remain union-free. The National Labor Relations Board conducted and supervised the secret-ballot election, and the result presumes to reflect the choice of Creature Comforts' employees.

Except maybe that secret-ballot election is not the choice of Creature Comforts' employees?

I fully expect BUG to file a petition with the NLRB seeking a Cemex bargaining order. What is a Cemex bargaining order, you ask?