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Not Again: National Labor Board May Seek to Bring Back Micro-Units

Jan 06, 2022

The National Labor Relations Board (“NLRB”) is inviting public parties and amici to submit briefs to address the controversial issue of petitioned-for bargaining units.

The rise of this hotly contested concept is the result of a recent case, American Steel Construction,  the merits of which have prompted the NLRB to reconsider reverting back to the standard established in a 2011 case, Specialty Healthcare, which made it easier for unions to organize employees into “micro-units.”


A “micro-unit” is a small portion of the total number of employees at a worksite which a labor union seeks to represent. This practice of targeting smaller groups of employees and providing them their own union representation presents a grave danger to employers and trade groups as it has been found to undermine worker’s rights and productivity.


A 2017 case, PCC Structurals, disfavored the use of these units, overturning the standard set in 2011. Now, the Biden board is likely to return to the 2011 standard, which was whether the employees encompassed a petitioned-for bargaining unit were readily identifiable as a group and shared a community interest. 


Now that the NLRB has granted review of the issue, public parties are invited to e-file briefs before January 21, 2022 regarding the following:


  1. Should the Board adhere to the standard in PCC Structurals, Inc., as revised in The Boeing Company?
  2. If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, either in its entirety or with modifications?


If the NLRB reverts back to the 2011 standard, it would be treading in dangerous waters, returning to harmful precedent in which the Board would accept the petitioned-for unit as appropriate in all cases except those in which the objecting party would somehow manage to survive a nearly impossible burden of proving that excluded employees share an “overwhelming community of interest” with included employees.


The return of micro-units is sure to awaken an uproar last seen over a decade ago and is almost certain to create division and discord in the workplace. 


If you have questions about this topic, or any other general employment issues, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Non-Compete Agreements Are in Jeopardy

26 Apr, 2024
On April 23, 2024, the Federal Trade Commission (“FTC”) issued a final rule banning non-competition agreements for all employees except for very narrow exceptions. The FTC’s Final Rule banning all non-competition agreements is effective 120 days after its publication in the Federal Register, which is expected in the next few days.  As of the effective date, all non-competition agreements are banned, except for franchisor/franchisee relationships and for sales of a business between buyer and seller. The FTC’s Rule is retroactive, prohibiting certain non-competition agreements before the effective date of the Rule as well. Existing non-competition agreements can remain in effect as to senior executives, which are defined in the Rule as employees in “policy-making positions” making at least $151,164 annually. The FTC’s Final Rule is already being challenged through the court system and a challenge from the Chamber of Commerce will most likely follow suit. Therefore, if an employer has existing non-competition agreements, the employer may not need to rescind them just yet. Stay tuned for updates as these challenges take their due course.

ALERT: US Department of Labor Increases Salary Threshold for White Collar Overtime and Minimum Wage Exemptions

26 Apr, 2024
By: Trevor Brice, Esq. On April 23, 2024, the U.S. Department of Labor (“DOL”) announced a Final Rule updating regulations governing Executive, Administrative and Professional exemptions (“EAP exemptions”) from the minimum wage and overtime rules. This Final Rule significantly increases the salary threshold for workers to qualify for EAP exemptions. In general, to qualify for EAP exemptions, an employee must 1) be paid on a salary basis, 2) at a threshold level, and 3) primarily perform EAP duties as defined by the DOL. The Final Rule does not impose any changes on the salary basis or job duties relevant in determining EAP exemptions. After issuance of a proposed rule that received approximately 33,000 comments, the DOL in the Final Rule is increasing the salary thresholds in waves. As of July 1, 2024, the salary threshold for EAP exemptions applies to employees making $844 per week ($43,888 annually) on a salary basis. As of January 1, 2025, the threshold increases to $1,128 per week ($58,656 annually). This means that employees making under these amounts on a salary basis as of these dates are no longer exempt from overtime, as long as the other criteria for determining EAP exemptions by the DOL are met. Additionally, the rule increases the salary threshold for the “highly compensated” employee exemption. This exemption applies when an employee meets the greater salary threshold, their primary duty includes performing office or non-manual work and the employee customarily and regularly performs at least one of the duties or responsibilities defined in the EAP exemptions. The DOL also issued the increased salary threshold for the highly compensated exemption in waves. As of July 1, 2024, the salary threshold for the highly compensated employee exemption applies to employees making $132,964 annually, including at least $844 per week paid on a salary or fee basis. As of January 1, 2025, the salary threshold for the highly compensated employee exemption raises to $151, 164 annually, including at least $1,128 per week on a salary or fee basis. The DOL estimates that under the Final Rule, there will be four million workers newly entitled to overtime protection as of 2025. As with the FTC’s Final Rule passed on the same day, the DOL’s Final Rule will most likely be subject to challenge through the court system. However, for employers concerned with this new rule, it would be prudent to identify those positions below or close to the new salary thresholds, consider whether to change salaries given the new thresholds and conduct training as to who will now be exempt under the DOL’s final rule. If there is any gray area as to the DOL’s final rule, reach out to the local employment and labor counsel to determine if there is potential liability. Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
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