A recent memo by acting National Labor Relations Board general counsel William Cowen that instructed prosecutors to prioritize investigating whether so-called union salts had a genuine interest in the jobs they sought will make it harder for those workers to prove they were discriminated against, experts said.
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The question of whether a union salt's interest in a job was genuine only comes into a trial under Toering if the employer raises the issue, and Cowen's memo notes that will still be the case going forward. But by making the factor a threshold issue in investigations, Cowen's memo effectively makes it so the charging party in a salting case must be able to show their interest was genuine for their case to proceed, said Daniel Sobol, a partner at Blank Rome LLP who represents employers.
"In the investigatory stage, before the charged party even gets involved, the burden is going to be on the charging party to establish a sincere desire to work," Sobol said. "And I think that's going to be looked at with more scrutiny going forward."
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"NLRB GC’s New Memo Is a Hurdle for Union ‘Salt’ Cases," by Tim Ryan was published in Law360 Employment Authority on July 28, 2025.
