The Labor Law Insider

Husch Blackwell partner Tyler Paetkau joins Labor Law Insider host Tom Godar to discuss the latest assault on non-compete agreements and their various iterations. While an August 2024 district court order enjoined the Federal Trade Commission’s recent action to ban virtually all non-compete agreements, and the FTC has since withdrawn its noncompete opinion, the National Labor Relations Board (NLRB) continues its campaign against non-competes, with NLRB General Counsel Jennifer Abruzzo publishing a memo last month doubling down on the policy position reflected in her May 2023 memo, namely, that “overbroad” non-competes are unlawful.Listen to this instructive exchange between Tom and Tyler as they walk through recent pronouncements from the NLRB on non-compete agreements and the remaining exceptions that might provide an opportunity for employers to continue with narrowly tailored agreements to assist employees on accepting employment opportunities, finding educational opportunities, and more.

In Part II of this exclusive Labor Law Insider podcast, former National Labor Relations Board Assistant Regional Director Rebecca Dormon continues to share her story of becoming a whistleblower against the federal agency she served for 25 years. Husch Blackwell’s Tom Godar and Megann McManus—and now you—are the first to hear the details of this transformative journey that shines a light on irregularities impacting mail ballot NLRB elections to the advantage of organized labor. In this episode, Rebecca shares deep concerns that the Board is no longer a neutral agency protecting employees’ rights but is yielding to pressure to be a union tool. Please join us for the conclusion of this first-hand, behind-the-scenes glimpse of agency action and a candid discussion of NLRB bias.

The Labor Law Insider is excited to share this episode, an exclusive interview with Rebecca Dormon, former assistant regional director of the National Labor Relations Board (NLRB) Region 15, as she shares her story for the first time of election abuse in ballot elections conducted over the last year and a half. Rebecca tells host Tom Godar and Husch Blackwell attorney Megann McManus how she became a whistleblower, shines a light on the improprieties and irregularities corrupting mail ballot NLRB elections across the country, and explains how the revelation led to a broader investigation into how elections were conducted across the agency.After decades of service with the NLRB, specializing in conducting elections “by the manual,” Rebecca was compelled to take on the unenviable role of a whistleblower and ultimately move into the role of labor relations consultant to guide and train employers in NLRA compliance. Rebecca’s story sheds light on the concerns of private businesses regarding the NLRB’s role as a neutral agency in union organizing efforts. Join us for this first-hand, behind-the-scenes glimpse of agency action and a candid discussion of NLRB bias.

In part two of this thought-provoking podcast episode on the tricky business of collective bargaining, Husch Blackwell attorneys Jon Anderson and Adam Doerr share war stories and real-life advice with host Tom Godar. Their discussion covers, among other items, how to deal with theatrics at the bargaining table, what to do when it looks like negotiations are getting stuck, and how do you bring bargaining to a close. There is art, science, and law involved in good-faith bargaining, and being prepared—long before seeing the union at the table—is the key to success. Veteran bargainers will be nodding their heads, and those new to the bargaining table will walk away with a whole new bag of tricks. Join us for part two of this practical episode of the Labor Law Insider podcast.

Our Labor Law Insiders tackle the tricky business of collective bargaining in parts one and two of this Labor Law Insider. Host Tom Godar shares the microphone with Husch Blackwell attorneys Jon Anderson and Adam Doerr who have spent countless hours with scores of unions locked into the process of collective bargaining. Listen to their insights on bargaining preparation, agreements between the parties as to the bargaining process, how to move past being “stuck” in the process. These Insiders offer insights on avoiding some of the real stumbling blocks of the bargaining process, while recognizing the possibility that even bargaining in good faith is no guarantee that strikes will never occur. Folks new to this process will be entertained and encouraged, and even bargaining table veterans will gain new insights. Join us for this practical episode of The Labor Law Insider podcast.

Labor Law Insiders Trecia Moore, Megann McManus, and Terry Potter continue their discussion with Labor Law Insider host Tom Godar regarding remedies the National Labor Relations Board is trying to impose for unfair labor practices. The Fifth Circuit overturned the Board’s Thryv decision and described the Board proposed remedies as “Draconian” and containing a “novel, consequential-damages-like labor law remedy” not generally available under the National Labor Relations Act. The Insiders also consider the aggressive remedies imposed by the Board in the Cemex case, mandating union recognition and issuing a bargaining order upon an employer whose unfair labor practice occurred in the course of a union campaign.  Listen to the practical discussion reviewing these developments and some takeaways that can help companies manage regulatory risk.

Labor Law Insider host Tom Godar engages in a lively discussion with guests Trecia Moore, Megann McManus, and Terry Potter regarding remedies in matters involving unfair labor practice charges. The centerpiece of our discussion is Thryv, Inc. v. National Labor Relations Board, a recent case in which the Fifth Circuit Court of Appeals took up questions relating to a National Labor Relations Board (NLRB) order that sought to challenge and reverse a company’s unilateral layoffs during a bargaining impasse. The employer, a Yellow Pages advertising vendor, had properly and legally implemented its Last Best Final Offer (LBFO) protocols and instituted its workforce reduction per the LBFO, but the union charged it with unfair labor practices before the NLRB anyway. What ensued next was unusual, even for the Biden administration’s NLRB. The Board overruled its own administrative law judge (ALJ) when the ALJ returned only a partial victory in the Board’s in-house venue and slapped Thryv with what the circuit court later called “a novel, consequential-damages-like labor law remedy.”We explore what made the Board’s order noteworthy, why the circuit court ultimately dismantled most of it, and the likely future for so-called make-whole remedies.

Labor Law Insider host Tom Godar continues his engaging conversation with Insiders Mary-Ann Czak and Terry Potter as they assess the challenges employers face from numerous recent policy reversals offered by the National Labor Relations Board. Mary-Ann and Terry work through real-life scenarios in light of these changes, which now force employers to rethink how they approach drafting policies and monitoring and disciplining employees for workplace and online behaviors. In part two of this fascinating exchange, the Insiders offer suggestions on how to engage and train frontline supervisors and how to approach employee communications and decision-making in light of the expanded definition of protected and concerted activities. Join us for continuation of this lively discussion.

Labor Law Insider host Tom Godar challenges his guests, Mary-Ann Czak and Terry Potter, with real-life scenarios gathered from client interactions over the past several months. These scenarios help highlight the fundamental shifts that have taken place under the Biden administration’s National Labor Relations Board, forcing employers to change their disciplinary analysis in so many different circumstances. In the first installment of this two-part podcast, Mary-Ann and Terry respond to questions related to confidentiality, recording at the workplace, nuances when making decisions in the healthcare setting, and much more. Join us for this content-rich and practical conversation and stay tuned for part two where this exchange continues with practical tips on how to proceed.

In part two of the discussion regarding the successful unionization of the Dartmouth University men’s basketball team, our labor law insiders Tyler Paetkau and Jason Montgomery, along with host Tom Godar, offer analysis and predictions for the next round of play for more athlete power.   Who will be the winner in this battle over the spoils of the trillion-dollar industry that is college athletics? It is a full-court press to explore union power, name, image, and likeness (NIL) revenue, state-level regulation of public universities and its impact on the NCAA and the various athletic conferences. Join us for this animated chalk talk.

Legendary basketball player Magic Johnson said, “The only thing that matters is the score.”Well, the score is 13 to 2, considering the votes for a union representing the Dartmouth College men’s basketball team. For college basketball hounds, it’s tournament time, but for the NCAA, it is a strange turn of events. Dartmouth, an Ivy League bench warmer in men’s basketball, has not played an NCAA Tournament game since 1959; however, it is now a leader in organized labor, choosing to become represented by the Service Employees International Union, since the National Labor Relations Board (NLRB) found that the institution exercises control and provides compensation—in the form of shoes—but not athletic scholarships. In its decision, the NLRB cited the players’ estimate that team members receive equipment valued at over $44,000 per year.Husch Blackwell partners Tyler Paetkau and Jason Montgomery join Labor Law Insider host Tom Godar to explore this development, as organized labor continues to apply a full-court press to institutions of higher education.

This episode of the Labor Law Insider concludes our discussion on the changes wrought by the National Labor Relations Board (NLRB) in 2023 and their implications for employers in 2024 and beyond. Adam Doerr and Rufino Gaytán join host Tom Godar to offer their thoughts on NLRB decisions that prohibit the inclusion of confidentiality provisions in release agreements.  They also provide insight into how employers must contend with a new risk calculus to implement their policies and actions regarding employee relations. The discussion also explores the significant increase in strikes and whether regular use of that provocative tactic is likely to continue. The Insiders also analyze how successful union organizing has expanded in 2023 and whether these trends reflect the greater popularity of unions in the broader public context. The episode concludes with a focus on proactive leadership by employers to limit their employees’ desire to unionize at all and to communicate effectively with unions that already represent their employees. Join the Labor Law Insiders for this stimulating podcast.

Labor Law Insider veterans Adam Doerr and Rufino Gaytán join host Tom Godar to discuss the impact of the National Labor Relations Board’s 2023 decisions. How does the Cemex decision, encouraging union representation without elections, fit in with the many other changes wrought by the NLRB in the past year? The discussion focuses on the much-narrowed pathway for employers to negotiate in 2024 regarding policies, discipline, and responding to union organizing. Join these experienced labor counsel as they offer thoughtful perspective of organized labor’s new power, and how they are flexing their muscle with both strikes and union organizing with new and union-friendly rules. This is Part One of a two-part series. Part Two will include further insights and opportunities to mitigate the impact of some of these decisions. Join us on this episode of the Labor Law Insider.

Husch Blackwell partners Tom O’Day and Tyler Paetkau join Labor Law Insider host Tom Godar in Part II of this discussion of the impact of new Cemex decision by the NLRB. Suddenly, minor violations of the National Labor Relations Act—or even a single violation—could result in an order forcing recognition of a union without the union ever achieving majority status in a secret ballot election.The Insiders also discuss the serious impact of a union election cycle reduced to only a couple of weeks, as well as the unprecedented employer obligation to file an election request with the NLRB upon presentation of a petition or cards claiming majority support of a union. Responding to this new threat must include a review and audit of your handbook, policies, and offer letters. The Insiders recommend offering valuable training to supervisors and emphasizing and practicing the pro-employee values of your company. It is even suggested that you have documents ready for when a union files in order to be up and running for the shortened election cycle even if you are successful in getting to a secret ballot vote. The Labor Law Insider podcast shares the secret that forewarned is forearmed.

In Part One of this discussion, Husch Blackwell partners Tom O’Day and Tyler Paetkau join Labor Law Insider Host Tom Godar to analyze the NLRB’s Cemex decision, which announced a radical new framework for determining when employers are required to bargain with unions without a representation election.Nearly any unfair labor practice—and certainly a series of even minor ULPs committed during an election period—will likely force an employer to recognize and bargain with a union, even if a majority of the employees vote against union representation. Employers will be forced to engage in a much more circumspect campaign opposing union organization, given the high risk of a bargaining order being imposed upon the employer.Part Two of the discussion will focus on this significant change, which, along with other pro-union NLRB decisions over the last 36 months, fundamentally alters employers’ approach and likelihood of success in winning union elections. In Part Two, Tom and Tyler offer some suggestions on how to win an election before one is ever filed.

In this episode of the Labor Law Insider, attorneys Adam Doerr, Trecia Moore, and host Tom Godar continue their discussion of decertification petitions, focusing on some of the practical implications related to decertification efforts, including:Employees who are frustrated with their union representative may be stymied by the complex decertification process, and the specific and detailed requirements of the process.Employers may consider withdrawal of union recognition based on loss of majority support, bolstered by a decertification petition, but face risks in doing so. Employers continue to have free speech rights in a decertification campaign but may opt for a softer approach for a variety of reasons.We conclude the episode by hazarding a few predictions, including the continued strength of recent union-organizing efforts with the likely result that more employees will opt for union representation; however, we also see an opportunity for employees who are disenchanted with their union experience to vote on decertifying their union, as could be the case for Starbucks employees.

In this episode of the Labor Law Insider, our host, Tom Godar, is joined by Husch Blackwell attorneys Adam Doerr and Trecia Moore to discuss union decertification.In 2022 there were approximately 1,700 petitions for election filed before the NLRB, and about 300 of these were filed by employees to decertify their bargaining unit representative.Over 300 Starbucks elections have resulted in union representation and at least 16 petitions for decertification have been filed.Employees continue to seek the end of union representation for a variety of reasons through the decertification process, including those experiencing changes in their bargaining unit or a change in those managing bargaining unit employees. Our Labor Law Insiders also discuss why some employers are quite content to remain in a bargaining relationship with the union. Join us now for part one of this podcast through the land of decertification and look forward to part two of this podcast where we discuss practical steps and cautions to consider in the decertification process.

Labor Law Insider host Tom Godar continues to explore the nexus of labor issues and higher education with veteran labor lawyer Tyler Paetkau of Husch Blackwell’s Labor & Employment group and Jason Montgomery a member of Husch Blackwell’s Higher Education group and a former NCAA investigator. Together they review NLRB General Counsel Abruzzo’s guidance regarding higher education and the Northwestern University decision, which paves the way for student-athletes to argue that they are employees under the National Labor Relations Act and its state counterparts with rights of representation by unions.Our Insiders review the implications of student-athletes receiving compensation for use of their name, image and likeness (NIL) and the new decision by the NLRB’s Los Angeles region to charge not only the University of Southern California but the Pac-12 Conference and the NCAA as joint employers of the student-athletes-putative employees. The podcast touches upon unions targeting college campuses, the special protection offered student-athletes under Title IX, and the potential impact of mandated equity among male and female athletes as among the new challenges facing universities and colleges. Although the large private institutions are attracting most interest, there is also recognition in the discussion that states provide organizing opportunities for students at public institutions, and even smaller institutions may ultimately be swept up in areas of traditional labor law protection if the trends already initiated by the National Labor Relations Board continue. Join us for this very thought-provoking discussion of emerging issues on college campuses and how student-athletes figure into what might become the most interesting challenge for universities, athletic conferences and even the NCAA in the coming decades.

Host Tom Godar is joined by two special guests, Tyler Paetkau and Jason Montgomery, for a special Higher Education edition of the Labor Law Insider. In this first part of a two-part podcast, the panel takes on two recent and hugely important U.S. Supreme Court decisions, Biden v. Nebraska Loan and Students for Fair Admissions v. Harvard College. The first case deals with student loan forgiveness and the second takes on race-based considerations for college admissions.Jason offers an analysis of the Court’s majority decisions in Students for Fair Admissions and shares how universities had anticipated this decision. In response, many institutions are changing—or at least, assessing—their current application standards. Tyler suggests that these issues may impact closely allied areas of concern, such as affirmative action and DEI policies, that have race-based components.There is also a discussion of the Biden administration’s executive overreach in declaring student loans forgiven, which the Court found to be an encroachment upon congressional power. The discussion also considers alternative approaches the administration may attempt to pursue its goal of student loan forgiveness. Also in Part One of this episode, the panel explores the notion of student-athletes as employees. Tyler discusses the recent decision by the National Labor Relations Board to issue a formal complaint against the NCAA, the Pac-12 Conference, and the University of Southern California in connection with alleged unfair labor practices.These themes are further developed in Part Two of the podcast, which looks at the increased activism of unions on campus with regards to both strikes as well as organizing. Universities are advised to identify and assess opportunities to understand where union activities may arise on their campuses.

In this episode, the second of two, host Tom Godar and guest Rufino Gaytán continue to discuss the impact of the National Labor Relations Board’s Lion Elastomers decision, allowing problematic behavior to be wrapped in the cloak of protected behavior. Rufino offers insight on the application of this decision to non-unionized employers and steps to be taken to decrease the chances that a claim for protected behavior would be successful before the NLRB. We also explore the difficult balance between the risk of a claim and the need for an employer to protect its culture and values by disciplining employees who may be acting outside of the employer’s standards.The discussion highlights that having a consistent application of employer policies, providing discipline in the context of uncivil behavior even when not remotely connected to protected concerted activity may help establish a guideline for analysis of an alleged unfair labor practice. While the NLRB will not make its decision based on the subjective intent of the employer, the lack of consistency in application of a policy will surely facto into any conclusion that discipline in a potentially protected area is unlawful. When witnessing such behavior, Rufino makes it clear that it is very fact specific and that one activity of a profane objection on behalf of many in the workforce may be protected, but when it turns into threatening behavior, it may lose its protection altogether. Nevertheless, the employer may work to defuse such heated exchanges through suspension and later review, seeking the core basis for the outburst rather than discharging an employee in the heat of the moment.Most importantly, Rufino suggests that the employer must carefully adhere to its core values that would not allow certain behavior to go unchecked when balancing this against the risk that an NLRB review might find that same behavior to be protected and concerted activity. At that point, it may be wise to consult counsel on the latest reading of this changing area of law and how it affects employers’ desire to keep the workplace civil and safe.