{"id":63113,"date":"2025-08-12T17:57:08","date_gmt":"2025-08-12T17:57:08","guid":{"rendered":"https:\/\/www.newsbeep.com\/au\/63113\/"},"modified":"2025-08-12T17:57:08","modified_gmt":"2025-08-12T17:57:08","slug":"hold-the-salt-key-takeaways-from-the-nlrbs-new-guidance-on-union-salting-sheppard-mullin-richter-hampton-llp","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/au\/63113\/","title":{"rendered":"Hold the Salt: Key Takeaways from the NLRB\u2019s New Guidance on Union Salting | Sheppard Mullin Richter & Hampton LLP"},"content":{"rendered":"

The National Labor Relations Board (\u201cNLRB\u201d) is sharpening its focus on \u201csalting\u201d\u2014the practice of union organizers seeking employment with non-union employers to facilitate organizing campaigns. On July 24, 2025, the NLRB\u2019s Acting General Counsel (\u201cAGC\u201d) William Cowen issued updated guidance that both clarifies and intensifies scrutiny around salting cases, altering how these matters will be investigated and litigated.[1]<\/a> Employers and HR professionals should take note of this evolving landscape.<\/p>\n

What Is \u201cSalting\u201d?<\/p>\n

\u201cSalting\u201d is a union organizing strategy in which union representatives or pro-union employees\u2014known as \u201csalts\u201d\u2014apply for employment with a non-union employer for the specific purpose of organizing the workforce from within.[2]<\/a> Unlike typical job applicants, salts are motivated not only by an interest in employment but also a desire to advocate for union representation or to gather evidence of unfair labor practices.[3]<\/a><\/p>\n

Salting can take several forms. Often, salts will conceal their union affiliation and present themselves as regular applicants. In other cases, salts may choose to openly disclose their union ties or organizing intent during the hiring process, which can test whether the employer unlawfully discriminates based on union affiliation. Additionally, in some campaigns, multiple union organizers submit applications at once as a coordinated effort to maximize the organizing impact or overwhelm the employer\u2019s hiring process.[4]<\/a><\/p>\n

Salting is protected under the NLRB, which prohibits employers from discriminating against applicants or employees because of union activities or sympathies. This tactic was most common in industries like construction, hospitality, and retail historically. However, in recent years, it has been increasingly common across a number of industries, some of which have not been prone to organizing, including technology, video games, transportation, cannabis, and fast food.<\/p>\n

Employers facing salts must tread carefully during hiring and discipline, as adverse actions against salts can spur unfair labor practice charges or NLRB investigations, especially as the NLRB renews its focus on these cases.<\/p>\n

Current Legal Standard: FES and Toering<\/p>\n

Historically, all job applicants\u2014including union salts\u2014were protected against hiring discrimination under Section 2(3) of the National Labor Relations Act (the \u201cAct\u201d). However, the NLRB\u2019s 2007 decision in Toering Electric Company and Foster Electric, 351 NLRB 225<\/a>, created a key exception: union organizers are not protected if they lack a genuine interest in employment and are merely seeking to provoke or disrupt the employer.<\/p>\n

In salting cases, the General Counsel bears the burden to \u201cprove by a preponderance of the evidence that the individual in question was genuinely interested in seeking to establish an employment relationship with the employer.\u201d[5]<\/a> The key elements the General Counsel must demonstrate include:<\/p>\n

\tThe employer was hiring or planning to hire at the relevant time;
\n\tThe applicants were qualified or the employer\u2019s requirements were inconsistently or pretextually applied; and
\n\tAntiunion animus contributed to the refusal to hire.[6]<\/a><\/p>\n

The employer may then rebut the General Counsel\u2019s showing by presenting evidence that it would not have hired the applicant(s) even in the absence of their union affiliation.[7]<\/a> Examples include demonstrating disruptive behavior during the application process, submitting stale or incomplete applications, or refusal of similar recent employment.[8]<\/a> If the employer raises a legitimate question regarding genuine intent, the burden shifts back to the General Counsel to prove by a preponderance of the evidence that the applicant had a bona fide interest in employment.[9]<\/a><\/p>\n

What\u2019s New: Acting GC Cowen\u2019s Guidance<\/p>\n

AGC Cowen\u2019s July 2025 memo to Regional Directors urges NLRB investigators to \u201cdeeply probe\u201d the motives and conduct of job applicants claiming discrimination, focusing on whether applicants were sincerely seeking employment or were solely acting as union salts.[10]<\/a> The AGC issued updated case processing guidance for all Regional offices to follow when investigating refusal-to-hire or refusal-to-consider-for-hire cases in the salting context. Key aspects of this updated guidance include:<\/p>\n

\tEnhanced Investigations: Regions must obtain all applications materials, scrutinize the motivation for applying, and thoroughly explore the applicant\u2019s interest in the job.[11]<\/a>
\n\tEvidence Gathering: Investigators should look for \u201cred flags\u201d in applications, such as antagonistic language, unusual employment gaps, or resumes highlighting union or organizing activities in a way inconsistent with sincere employment interest.[12]<\/a>
\n\tMass Applications: For union campaigns that submit batches of applications, the Region should confirm that each applicant actually authorized their application.[13]<\/a>
\n\tBackpay and Remedies: Under Oil Capitol Sheet Metal, Inc.[14]<\/a>, backpay for salts is not presumed for an indefinite period. The GC must provide affirmative evidence on how long the salt would have remained employed.[15]<\/a><\/p>\n

The AGC\u2019s directive signals that regions should refer close or novel salting cases to the NLRB\u2019s Division of Advice, potentially indicating that the NLRB may revisit or further refine policy in this area. Employers should expect more rigorous investigation and be prepared to respond to NLRB inquiries with detailed evidentiary support.<\/p>\n

Takeaways for Employers<\/p>\n

\tDocument behavior and application materials. Carefully record any disruptive, antagonistic, or insincere conduct during hiring processes.
\n\tUniform application of hiring standards. Enforce the same objective criteria for all applicants to strengthen defense against claims.
\n\tReview application materials thoroughly. Note any inconsistencies, lack of genuine interest, or \u201cred flag\u201d statements.
\n\tPrior union membership is not disqualifying. Simply working for a unionized employer or serving in a union role cannot, by itself, justify a refusal to hire. In fact, denying employment for that reason alone could give rise to an unfair labor practice charge. However, when prior union experience is combined with other factors, it may sometimes suggest that an applicant\u2019s interest in the position is not genuine.
\n\tTrain managers and HR. Educate staff on how to identify and document behaviors or statements inconsistent with genuine interest in employment.
\n\tConsult counsel when facing salting inquiries. Seek legal review when in doubt; it is increasingly important given the AGC\u2019s new focus.<\/p>\n

Bottom Line<\/p>\n

The NLRB\u2019s renewed focus on the sincerity of union organizers seeking employment\u2014and its expectations for robust employer and agency documentation\u2014place a premium on consistent, objective hiring practices and thorough documentation. Employers who encounter suspected salting should act thoughtfully, consult with experienced labor counsel, and ensure all employment decisions withstand close legal scrutiny.<\/p>\n

FOOTNOTES<\/p>\n

[1]<\/a> NLRB, Memorandum GC 25-08, Guidance for Investigating Salting Cases (July 24, 2025)<\/a><\/p>\n

[2]<\/a> \u201cSalting has been defined as \u2018the act of a trade union in sending a union member or members to an unorganized jobsite to obtain employment and then organize the employees.\u2019\u201d Toering Electric Co. and Foster Electric, 351 NLRB 225, fn 3 (2007)<\/a> (quoting Tualatin Electric, Inc. 312 NLRB 129, 130 fn. 3 (1993), enfd. 84 F.3d 1202, 1203 fn. 1 (9th Cir. 1996)).<\/p>\n

[3]<\/a> However, \u201ca salting campaign\u2019s immediate objective may not always be organizational, and the role of an individual \u2018salt\u2019 who applies for work may not always be to obtain employment.\u201d Toering Electric Co., 351 NLRB at fn 3.<\/p>\n

[4]<\/a> \u201cThe fact that applications may be submitted in a batch is not, in and of itself, sufficient to destroy genuine applicant status, provided that the submitter of the batched applications has the requisite authorization from the individual applicants.\u201d Id. at 233, fn 51.<\/p>\n

[5]<\/a> Id. at 233.<\/p>\n

[6]<\/a> Fes, A Div. of Thermo Power, 331 NLRB 9, 12 (2000)<\/a><\/p>\n

[7]<\/a> Toering Electric Co., 351 NLRB at 239.<\/p>\n

[8]<\/a> NLRB, Memorandum GC 25-08, Guidance for Investigating Salting Cases, 3 (July 24, 2025)<\/a><\/p>\n

[9]<\/a> Id.<\/p>\n

[10]<\/a> NLRB, Memorandum GC 25-08, Guidance for Investigating Salting Cases (July 24, 2025)<\/a><\/p>\n

[11]<\/a> NLRB, Memorandum GC 25-08, Guidance for Investigating Salting Cases, 3-4 (July 24, 2025)<\/a><\/p>\n

[12]<\/a> NLRB, Memorandum GC 25-08, Guidance for Investigating Salting Cases, 5 (July 24, 2025)<\/a><\/p>\n

[13]<\/a> NLRB, Memorandum GC 25-08, Guidance for Investigating Salting Cases, 4 (July 24, 2025)<\/a><\/p>\n

[14]<\/a> 349 NLRB 1348 (2007)<\/a><\/p>\n

[15]<\/a> NLRB, Memorandum GC 25-08, Guidance for Investigating Salting Cases, 6-7 (July 24, 2025)<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"The National Labor Relations Board (\u201cNLRB\u201d) is sharpening its focus on \u201csalting\u201d\u2014the practice of union organizers seeking employment…\n","protected":false},"author":2,"featured_media":63114,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13],"tags":[64,63,99,180],"class_list":{"0":"post-63113","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-jobs","8":"tag-au","9":"tag-australia","10":"tag-business","11":"tag-jobs"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/63113","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/comments?post=63113"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/63113\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media\/63114"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media?parent=63113"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/categories?post=63113"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/tags?post=63113"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}