Labor Law Notes

• § 2: Defintions of "employers" and "employees"
  • § 2(2): definiton of "employer"
    • "The term “employer” includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization."
    • includes "agents of employer" -- like supervisors
    • excludes public sector employees (gov't workers)
  • § 2(3): defintion of "employee"
    • "The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined."
  • § 2(11): supervisors
    • “The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
• § 7: Rights of Employees
  • (a) right to self-organization
  • (b) right to engage in collective bargaining through freely chosen representative
  • (c) right to engage in concerted activities
• § 8: Unfair Labor Practices
  • § 8(a)(1)
  • § 8(a)(4)
  • § 8(a)(5)
• § 14: limitations
  • § 14(c)(1): Board can decline to exert jurisdiction if it thinks employer does not have substantial effect on interstate commerce

Defining Employers, Employees, & Everyone In-Between

• Section 7 of the NLRA protects employees from unfair labor practices
• Enforcement of section 7 is often dependent on whether one can actually be called an "employee" or "employer"

Who is an "employee"

• Big Question: Who is an employee? Who is simply a "worker"?
  • Are gig workers "employees?" Student workers? Undocumented workers?
  • If not, what doe this mean for their ability to exercise labor rights?


• NLRB § 2(3): “The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.”
  • tldr; to have rights under the NLRA, you basically can't be an independent contractor (among
  other things)

• independent contractors
  • about 1/3 of the US workforce
  • typically has a (a) weak affiliation with employer, (b) no implicit long-term contract, (c) no significant stake in company, and (d) not considered a part of the "corporate family"
• Tests for determining whether a worker is an independent contractor:
  • right-to-control test
    • tldr; does the employer control or have the right to control the manner and means of the worker's work?
  • economic reality test
    • tldr; Under the "economic realities of the situation, is the worker "economically dependent" on the employer such that it would fulfill the purposes of the legislation to include the worker as covered under the NLRA?
    • note: more worker friendly!
  • the ABC test
    • begins with the assumption that a worker is an employee under the NLRA, UNLESS
    • (a) "the individual is free from direction and control,” applicable both “under his contract for the performance of service an in fact,"
    • (b) "the service is performed outside the usual course of business of the employer,” and
    • (c) the “individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

Who is an "employer"

Collective Action

• § 7 protects right to “engage in concerted activity for mutual aid and protection”
• Big questions here:
  • (a) Whose activity is protected under Section 7 (non-unionized employees?)
  • (b) To whom does "mutual aid or protection" refer? (ie: are emploees protected when they act on behalf of the group? On behalf of other indivdual workers? both?)
• statutory text:
  “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.”

"Concerted Activity"

• Whether group activity is protected hinges on whether activity falls under definition of “concerted activity”
• "Concerted Activity" can be defined in two (somewhat contradictory) ways
• (a) individuals working alone as part of a broader effort
• (b) many poeple working together concurrently
• Theories of concerted Activity
• (a) concerted activity is harmonious with indivdual rights
  • the well-being of ONE is intertwined with the well-being of the COLLECTIVE
  • the struggle for communal rights is deeply entrenched in the concept of solidarity. Note the emphasis on striking on behalf of a single employee being unfairly terminiated. "If it can happen to her, it can happen to any of us"
• (b) concerted activity is incompatible with individual rights

• Scope of concerted activity
• some examples of concerted activity:
  • organizing and signing a petition to boss to change working conditions
  • engaging in a march as a group to protest work conditions
• some examples of when concerted activity may not be protected:
  • saying/doing egregiously offensive things, like using racial slurs
  • Publically disparaging employer's products or services without relating to your labor concern
• Two cases help define what we mean when we say "concerted activity"
• NLRB v Washington Aluminum Co
• § 7 protects the concerted activity of nonunion workers
• NLRB v City Disposable Systems Inc
• Interboro doctrine: actions taken by ind’v that is an assertion of a right grounded in collective bargaining is “concerted activity”
• § 7 protects a person asserting a right in their collective bargaining agreement is

"Mutual Aid and Protection"