November 2023 Volume 5

OPERATIONS & MANAGEMENT

also have seen the NLRB take on severance agreements, finding that nondisclosure ( i.e., confidentiality) and non-disparagement provisions violate federal labor law. The NLRB also has reviewed and changed its test about who is – or is not – an independent contractor. Previously, there was particular emphasis on “entrepreneurial opportunity.” But now, the NLRB has revised the use of a 10-factor test, still considering “entrepreneurial opportunity” but only as one of these factors. So, you’re not imagining it. The NLRB and unions – and efforts to expand union organizing and membership – seem to be everywhere. This article provides general information. Please consult with counsel for legal advice.

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

NLRB focus on more general employment policies (such as those in handbooks). Common examples are non-solicitation, social media, and data use. Previously, there was a balancing test applied – weighing the potential impact on NLRA rights (protecting concerted activity) versus the legitimate business need. The NLRB now says this test gives too much weight to an employer’s perspective. The rules must be viewed from the perspective of a “reasonable employee who is economically dependent” on the employer. We

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