Page 26 - BusinessWest January 9, 2023

Employment-law Roundup
Five Important Things to Know Going into 2023
BY AMELIA J. HOLSTROM, ESQ. AND JOHN S. GANNON, ESQ.
Massachusetts employers are used to the ever- changing employment-law landscape. As
we close out another year and ring in a new
one, it is clear that 2023 will bring new challenges and new requirements for employers throughout the Commonwealth.
We’ve rounded up the top five things employers need to know and keep an eye on as we turn the page to 2023.
Decision on Micro-units May Be Troubling for Employers
When a union attempts to organize a group of employees at a business, it files a representation petition with the National Labor Relations Board (NLRB), identifying the proposed bargaining unit, which is the group of employees the union seeks to represent and who will be eligible to vote on whether it gets to do so. Sometimes, employers will seek to add additional employees to the union’s proposed bargaining unit, as larger proposed bargaining units may be favorable for employers in representation elections.
In a recent decision, American Steel Construc- tion, the NLRB, which interprets and enforces the National Labor Relations Act (NLRA), gave a power- ful tool to unions by clearing the way for small bar- gaining units, often called ‘micro-units.’ Specifically,
the board decided that it will approve a smaller subdi- vision of employees as a bargaining unit if they meet certain criteria.
Under this standard, unions are likely to be very successful in getting the NLRB to approve micro- units. As a result, employers are placed at risk of hav- ing to bargain with several small units of employees in one workplace.
NLRB to Surveil Employers’ Surveillance Measures
Businesses regularly monitor employees in the workplace. For example, employers may moni-
tor telephone calls for quality-assurance purposes, install cameras in the workplace or dashcam systems in vehicles, or monitor communications sent and received on employer-owned devices. Such monitor- ing appears be under attack by the NLRB.
In early November 2022, the general counsel of the NLRB issued a memorandum regarding employ- ee surveillance, in which she urges the NLRB to adopt a “new framework” for determining whether employer surveillance violates the law. Under this framework, violations may occur when the surveil-
AMELIA HOLSTROM
JOHN GANNON
“In a recent decision, American Steel Construction, the NLRB, which interprets and enforces the National Labor Relations Act (NLRA), gave a powerful tool to unions by clearing the way for small bargaining units, often called ‘micro-units.’.”
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Roundup
Continued on page 28
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