If you found it difficult to keep up with all of the new directives coming from the National Labor Relations Board (the Board) in 2023, buckle up – it looks like more of the same as we head toward 2024.

Priorities for the Board and General Counsel Jennifer Abruzzo will continue to focus on narrowing existing work rules and expanding Union protections. A few key areas will likely include:

• A continuing focus on ‘reasonable interpretation’ standards for reviewing workplace rules. As discussed here, the Boards’s new focus for analyzing employer policies is “from the perspective of an employee who is subject to the employer’s rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. The overall view of the Board being that employees who are economically dependent on their employers are anxious to avoid discharge or discipline, reasonably inclined to construe ambiguous work rules to prohibit protected activities and as a result seek to avoid any risk of violation by forgoing such activities.

Such a subjective examination perspective will likely result in a tendency of the Board to find interference – even if a noncoercive interpretation is also reasonable. As a result, ‘justification’ will become the watchword in 2024 when it comes to evaluating new and existing employment policies.

• Limitations on restrictive agreements (e.g., non-compete agreements). This focus will be of less concern to California employers as the state has made clear – if it wasn’t before! – that such agreements, in any form, are a serious violation of its public policies against restricting an employee’s ability to freely move from opportunity to opportunity. Nonetheless, for 2024, the Board’s focus will be on equalizing the balance between employers and employees when it comes to negotiating these types of agreements.
• Responding to Union Recognition Demands. As discussed here, the Board’s new framework for recognizing an employer’s duty to collectively bargain marks a significant shift in the landscape of labor relations in the United States. With the weight of the Biden Administration behind its Union-focused efforts the Board will likely continue its stated goals of shortening pre-election hearings, limiting pre-dispute hearings and pushing forward quickened election dates.

Looking ahead to 2024 with these key focuses in mind, employers should consider the following:

• Increase internal review of policies and procedures (e.g., from once a year to every six months or a quarterly schedule). Consult with legal counsel before updating or initiating new policies to ensure a broad focus in keeping with the Board’s new review standard.
• For employers outside of California, reconsider the value and risk propositions of continuing to use non-compete agreements. Examine the organization’s goals in utilizing such agreements and consult legal counsel to discuss alternative means for achieving those goals.
• Pro-Union changes are, for the foreseeable future, here to stay. Staying up to date on employer duties when it comes to collective bargaining will go a long way to lower an organization’s risk of running afoul of complex rules governing employer/employee interactions. A huge focus for employers in 2024 should also be identifying and taking steps to improve workplace relations.