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On January 25, 2021, the National Labor Relations Board’s Division of Advice released an Advice Memo on the issue of whether certain cannabis workers were exempt from the National Labor Relations Act as agricultural workers. The Advice Memo noted at the outset that the “Board has not ruled on whether employees of a marijuana enterprise are agricultural laborers or statutory employees.” The difference in classification is important – the Board has jurisdiction over statutory employees but not agricultural laborers, which means the latter cannot seek redress from the NLRB for alleged labor law violations.
President Joe Biden has nominated Jennifer Abruzzo, a lawyer for the Communication Workers of America union, to be general counsel of the National Labor Relations Board (the “Board”).
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Part one of this two-part series covered changes to U.S. labor law policies that employers can expect to see with the new administration. Part two is a brief summary of the most prevalent issues in current labor law and their likely disposition under a new Biden administration and National Labor Relations Board (NLRB).
1. Board Jurisdiction
The Board itself will act to reassert jurisdiction over student/employees at colleges and universities. While this is an issue that has changed several times, the current decisional authority is from 2016 (
Columbia University) and finds these students to be employees with organizing rights; but the Trump Board has proposed a rule that would find them to be primarily students without organizing rights. Assuming the current Board does not finalize that rule, the Biden Board could withdraw it and continue to follow the
Thursday, January 21, 2021
At noon, eastern standard time, on January 20, 2021, Joseph R. Biden Jr. became the 46th president of the United States, giving Democrats control of the executive branch, and, albeit by the thinnest of margins (with Vice President Kamala D. Harris presiding as president of the U.S. Senate), the legislative branch of the U.S. government for the first time since 2011. While that transition will, no doubt, impact a great many national and global issues, the focus of this article is the potential impact that this dynamic will have on U.S. labor law and policy.
Those who have been monitoring labor issues since 2008 largely know what to expect. After four years of more management-friendly labor policy, today the pendulum has started to swing in the direction of labor, just as it did in 2008. How far the pendulum swings and how fast is yet to be determined, but all signs indicate the swing could be significant. On the eve of the election, President Bid
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Labor law, along with other employment-related policy matters, is at the forefront of the political, economic, and oftentimes cultural divide in the nation. With the change in Presidential administrations, some knowledgeable commentators contend that “everything” in the law and broader economy is now up for change, and much hangs on whether the filibuster rule remains viable in the U.S. Senate. Immediate change is likely, including revocation of Trump Executive Orders and issuance of new ones by President Joe Biden, regulatory changes, and possible legislative amendments to the National Labor Relations Act and other laws.