Tag: Janus v. AFSCME

How to Get Rid of a Union

Published by Brett Holubeck on August 28, 2019

Image of sheet of post-it notes that are being pulled off a wall — Photo by Kelly Sikkema on Unsplash

In an earlier post we discussed how to respond to an unfair labor practice charge and how to respond to union organizing. However, many employees work in unionized work environments and feel that they would be better off without the union.

Some examples are listed here:

In the Friedrichs v. California Teachers Ass’n decision in 2014 (which resulted in a tie at the Supreme Court), Friedrichs, a California teacher, felt that as a member of a union she was forced to pay dues to the union who used that money to advocate for issues that she did not agree with. Specifically, the union used dues to argue against more parental choice regarding where parents send their kids for school, and the union often spent money to support political causes that she did not agree with.
Mark Janus, of the Janus v. AFSCME case that went before the Supreme Court, said that he cannot say “No, I don’t want to pay this. I either pay the union fee or I lose my job.”
Some unionized workers at Kroger have said “I’ve read online about having an initiation fee for the Union but $21 a week for a part-time minimum wage worker seems excessive.”

These are just a few examples of people who feel the union they are associated with does not represent their actual or best interests.

So, what happens if there is already a union in a workplace and the employees no longer want one? There are a couple of ways that employees can get rid of a union if they no longer wish to be represented by the union.

Decertification Election

The most common way that employees choose to no longer be represented by a union is a decertification election.

The decertification process begins when an employee hands the employer a decertification petition that is signed by at least 30% of the employees like this one available through Union Facts.

As stated by the NLRB, decertification petitions cannot be filed in a couple of circumstances:

These petitions cannot be filed within the first year after a union wins an NLRB sponsored election.
Plus, if an employer and union reach a collective-bargaining agreement, an employee cannot request “a decertification election (or an election to bring in another union) during the first three years of that agreement, except during a 30-day ‘window period.’” That period begins 90 days before the agreement expires and ends 60 days before the agreement expires (120 and 90 days if your employer is a healthcare institution).
After a collective-bargaining agreement passes the three-year mark or expires, “employees may request an election to decertify the union or to vote in another union at any time.

Under the National Labor Relations Act, employers cannot provide more than ministerial aid to employees in gathering signatures for a decertification petition. This means that employers cannot give employees aid in circulating the petition or getting employees to sign it. If an employee approaches the employer and asks about getting rid of the union, then the employer can give employees some limited information on how to get rid of the union.

Once a decertification petition is filed, then the employer can actively campaign to get rid of the union, which can include a number of things:

An employer may hold meetings to deliver its message. That message must be truthful and must avoid promises of what will happen if the union leaves or threats.
- There are time limits on when these meetings can be held and typically there is a limit on meetings in the last 24 hours before a vote.
- Employers will often discuss the advantages and disadvantages of a union during these meetings and may compare wages and benefits.
- Employers can state that they want employees to vote against a union.
It can post flyers with information for employees.
Supervisors can discuss their experience with the union if they are asked for their opinion.
Companies can enforce policies about soliciting and distribution of literature during non-working time and in non-working areas (most unionized workplaces will not have such a policy. If that is the case, then both sides may be passing out literature and discussing the union while they are working).

Employers must remember to follow the TIPS protocol (employers cannot threaten, interrogate, promise, or spy) and to avoid other violations of labor law. You can review my earlier article on responding to an unfair labor practice with a breakdown of TIPS and other matters.

NLRB Proposed Rule on Blocking Charges

Unfortunately for many employers and employees, most unions and other employees will file blocking charges to delay a decertification election or to suspend it entirely. Essentially, an employee or the union may file an unfair labor practice charge (alleging that the employer violated the National Labor Relations Act) during a decertification petition and a request to block an election until the unfair labor practice is resolved. This means that unions can continue to represent employees while the charge is being resolved and can sometimes result in an indefinite suspension of the election.

The NLRB has proposed “replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.”

This would be a major step that would allow employees to freely decide whether they want to have a union or not. It would also eliminate a common way that unions prevent employees from choosing to leave a union (unions file many charges that prevent an election from ever taking place).

Withdrawal of Recognition

The blocking charge issue can also be avoided by withdrawing recognition from the union. An employer has the option to unilaterally withdraw recognition from a union that has lost support of a majority of the employees in the bargaining unit as held in the Supreme Court’s decision in Allentown Mack Sales & Service v. NLRB. The evidence is usually in the form of a petition signed by a majority of employees that asks for the employer to immediately withdraw recognition from the union. The withdrawal of recognition usually occurs right before the expiration of a collective bargaining agreement or after an agreement has expired.

Typically, collective bargaining agreements have an extension clause whereby the agreement continues unless either party (the union or employer) notifies the other that it intends to terminate or modify the agreement within a certain period of days (typically 60 days) before the agreement expires. It is important that employers send this notice to the union within the required time frame so that the agreement does not continue after it expires.

Unlawful conduct by the employer can result in the union again becoming the bargaining agent for the employees. The typical violations that would prevent the withdraw of recognition are a refusal to bargain with the union before the expiration of the contract, any unlawful (i.e. more than ministerial) assistance in gathering signatures on the petition, or any conduct that unlawfully undermines the union’s majority status.

Withdrawing recognition is usually best for employees and the employer when properly done because it avoids a decertification election, which usually never occurs because unions frequently file unfair labor practice charges that prevent the election from ever taking place. However, due to the complicated nature of union issues, employers are well served by seeking experienced attorneys that can help with this process as an unfair labor practice is almost always filed by the union after an employer withdraws recognition.

Right to Work Laws

Right to work laws do not get rid of the union. They allow individual members to opt out of paying union dues. Essentially, they guarantee that a person cannot be forced, a condition of employment, to join a union or pay union dues. The Janus Supreme Court decision made all government employees in every state subject to this principle. No government employee can be required to join a union as a condition of employment or be required to pay union dues. These employees also cannot be required to pay an agency fee for the union to represent them in the collective bargaining process.

The Janus decision does not apply to private sector employees. A total of 27 states have passed right to work laws that give private employees the right to refuse to join a union or to pay fees for the union to represent them in collective bargaining (agency fees).

Again, the reason why many employees do not want to pay these fees is because the worker may be required to pay for the union to take positions that they oppose. The clearest example of this is new teachers that may be required to pay fees to the union when the union advocates for increased pay raises that result in layoffs of new teachers. See this article and this one this one discussing layoffs that occurred for young teachers as a result of a pay raise and budget shortfall in certain school districts.

Unions still exist in right to work states. A union in these states is still expected to bargain on behalf of all employees including those that are not members of the union. Right to work laws simply allow employees to refuse to pay union dues or agency fees.

Conclusion

Employees that wish to get rid of a union have several options. The best advice for any employee that is looking to leave their union or get rid of a union in their workplace is to look for a petition to get rid of the union (like the one available here) and to speak with their fellow workers that they know would be interested in getting rid of the union. Employees must make sure to do this without violating workplace rules (such as doing it during working time), and they must be careful to avoid speaking with employees that support the union (and the union steward) or having conversations nearby those individuals.

Employees can also approach the company management to let the company know that they (the employee) are trying to get other employees to sign a decertification petition. It is almost always a good idea for the employee to do this so that the employer can alert or find a labor and employment lawyer to help them prepare to respond to any unfair labor practice charge that the union files, to examine the signed petition showing that a majority of employees do not support the union, and to help in any other lawful way that they can.

It is best to act quickly once an employee circulates a petition to get rid of a union. The longer that an employee spends gathering signatures, the more likely it is that the union or union supporters will seek to file an unfair labor practice to block employees that no longer want the union.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2019 Labor and Employment Law Predictions

Published by Brett Holubeck on January 4, 2019

2018 was a whirlwind year for labor and employment. There were 3 major Supreme Court decisions. One decision concerned overtime exemptions to the Fair Labor Standard Act where the court found that the exemptions should be interpreted broadly rather than narrowly. The Janus decision held that public sector employees could not be forced to pay an agency fee (public sector employees do not need to pay anything to a union that represents them). Finally, the Court found in the Epic Systems case that employers can require employees to settle employment disputes through arbitration agreements without violating the National Labor Relations Act.

While not as many changes will occur this year in labor and employment, there are still a number of exciting changes that could occur. Here are 10 labor and employment law predictions that I believe will happen next year.

Sexual Harassment Lawsuits Will Increase

The #Metoo movement is not going away in 2018. The preliminary data from the EEOC showed that charges alleging sexual harassment increased by more than 12% from 2017 into 2018. Unfortunately, this is an issue that is not going away. My prediction is that there will be more of these charges and lawsuits going into this year.

There will also be several states that will enact new laws to combat sexual harassment this year. California already has new requirements that just went into effect.

Starting in 2019, employers with five or more employees must provide two hours of training to supervisors and one hour to all other employees within six months of their hire (or promotion to supervisor) and every two years thereafter. Temporary and seasonal employees must be trained within their first 30 days or 100 hours, whichever comes first.

No company wants to be thought of as the company that allowed sexual harassment. Just look at what happened to Mike Isabella, a former Top Chef star, and his restaurants:

But in a Chapter 7 filing on Tuesday, which seeks to operate six restaurants through Dec. 27 before closing them permanently, Isabella argues that the local and national media relentlessly threw shade on his business operations even after he agreed to a confidential settlement in May with former Isabella Eatery manager, Chloe Caras, who sued for “extraordinary sexual harassment.” Isabella, documents note, apologized publicly to a local TV reporter and implemented new “zero tolerance” sexual harassment policies at all of his restaurants. He was ready to “restore confidence in Mike Isabella and his restaurants.”

Isabella lost his restaurants after he was accused of sexual harassment. Now, the accusations against him were very serious and he was the owner of the restaurant and was the one accused of sexual harassment. However, this can happen to any business and can be caused by employees at any level of the business. The issue of sexual harassment in the workplace is not going away. There will be more lawsuits, and charges regarding sexual harassment in 2019 than there were in 2018.

The Supreme Court Will Take a Case to Decide Whether Sexual Orientation is Protected under Title VII

The Supreme Court is considering taking a case to determine whether Title VII protects employees from discrimination based on their sexual orientation. The issue hinges on whether “Because of … sex” includes sexual orientation or is limited to a person’s sex.

Currently there is a split among the Circuit Courts. The 2nd and 7th Circuit have found that Title VII prohibits sexual orientation-based discrimination and the 11th Circuit has found that sexual orientation is not protected under Title VII.

The Supreme Court will grant the writ of certiorari and they will review the case. If the Supreme Court decides to review the issue, then it will be one of the most important cases that the Court considers next term.

The Department of Labor Will Increase the Salary Threshold for the Overtime Rule

The Department of Labor is still undergoing rulemaking to raise the salary threshold that is required to meet the overtime exemption, which allows companies to pay workers a salary and not have to pay employees overtime regardless of the number of hours that they work in a week. Currently, an employee must be paid at least $455 per week (which equals $23,660 annually) to meet the salary threshold. In 2016, the Obama administration raised the salary threshold to $913 a week (or $47,476 a year). A federal district judge eventually blocked that rule and questioned the DOL’s ability to set any salary requirement to be exempt from overtime.

The DOL will attempt to raise the threshold to around $33,000 this year probably in March. The new salary threshold will be challenged again to determine whether the DOL even has the authority to set a salary threshold.

Paid Family Leave is Coming

As I said in a prior post, paid family leave is coming. This is a question of when and not if. I believe that it will be implemented either this year or next year. Here is what I said in my earlier post.

Various politicians have expressed their support for paid family leave. Ivanka Trump and The White House have discussed their support for family leave. Marco Rubio introduced a plan to allow new parents to delay taking their Social Security benefits in exchange for two months of paid parental benefits. The Democratic Party Platform also called for paid family leave.

One poll showed that 54% of Americans think the government should require all employers to provide 12 weeks of paid family and medical leave. Only 29% of the respondents disagreed and 17% were undecided. With as much support as there is for paid family leave, it seems certain that Congress and the President will eventually enact a paid family leave law.

The National Labor Relations Board Will Issue a Joint Employer Standard

In September, the NLRB had issued a notice of proposed rulemaking to change the joint employer standard. The joint employer standard is important to determine whether companies are liable for violations of the law that are committed by staffing companies or franchises. For example, McDonalds has been combating a charge that it is a joint employer with its franchisees and is responsible for these small business owners firing employees that wanted higher wages.

Here is the release from the NLRB with the proposed rule:

Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

Unfortunately for the NLRB, the DC Circuit Court recently found that:

the question of whether there is a joint employment relationship under the National Labor Relations Act (NLRA) must be answered by applying the common law test for whether there exists an “agency” relationship. The Board has no special expertise relevant to defining the common law of agency. Therefore, according to the Court of Appeals, the Board is awarded no deference in this area. In other words, the Board does not have the right to define or redefine joint employment in a way that would be inconsistent with the common law meaning of “agency.”’

My prediction is that the NLRB moves forward with its rulemaking and ignores the decision of the DC Circuit. This will have a big impact on employers that use staffing companies because they will not (generally) be liable for violations that the staffing company commits against its employees unless the company exercises direct control over the employees rather than merely having the ability to direct the staffing company employees.

To clarify, it is basically the difference between a supervisor of a hotel telling the landscaping crew (that is employed by a staffing company) how to perform their jobs and exactly what needs to be done (direct control) versus the staffing company supervising, disciplining, and directing the employees with the supervisor or owner of the hotel merely having the authority to direct these landscaping employees (indirect control).

I know it is a bit convoluted, but it is incredibly important. Depending on how this decision turns out it could have a big impact on any company that franchises businesses. Yes, that means that it will impact every McDonalds and Chick-Fil-A owner.

Independent Contractor Issues Will Arise in Many States

Independent contractors are everywhere and the law concerning them is far from settled. My prediction is that more states will seek to limit the abilities of companies to use independent contractors especially when these contractors form a part of the company’s core business (think UBER drivers).

The California Supreme Court issued a landmark decision last year and the effects are still being felt. Below is the new test (called the ABC test) that the court implemented. For a worker to be an independent contractor the company must show:

1) that the company does not direct the worker in the performance of her job, 2) that the worker performs work outside the scope of the company’s typical business (such as a freelance artist who designs fliers for a moving company), and 3) that the worker has made the affirmative decision to go into business for herself, perhaps by incorporating or starting an LLC.

New Jersey and Massachusetts also use the ABC test to determine whether a worker is an independent contractor. Many of the companies that use independent contractors have a bad reputation and it is likely that more state supreme courts and possibly legislatures will adopt the ABC test. Regardless, it will get harder (at the state level) for companies to employ independent contractors.

More States will Protect Medical Marijuana Users from Discrimination

More states will change their stance on medical marijuana and whether employees that use it are protected from discrimination. Currently Connecticut, Massachusetts, and Rhode Island protect employee use of medical marijuana and prohibit employers from firing those employees for off duty medical marijuana use. In December, a Delaware judge allowed a case involving a medical marijuana user that was fired after failing a drug test to move forward.

We may not get a decision on this case this year, but it is likely that Delaware will join Connecticut, Massachusetts, and Rhode Island in protecting off duty medical marijuana use, and more states will follow suit.

Unfortunately for employers, there is not a good test that can measure impairment for marijuana, which is why more states protecting off-duty marijuana use will cause problems for employers. Until there is a test that can measure impairment, increased training will be critical so that supervisors can observe employees that appear to be impaired.

You can see my earlier post regarding addressing marijuana in the workplace here.

Notices of Inspection (I-9 Audits) Will Increase

There will be more Notices of Inspection (I-9 Audits) against businesses this year. As I said in a prior post about Notices of Inspection:

Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018.

Immigration enforcement is a priority for the Trump Administration.

The Supreme Court Will Issue a Decision About DACA. A Deal Will be Reached to Allow DACA Recipients to Remain in the US.

Either the Supreme Court will issue a decision about DACA or there will be new legislation that will solve the DACA issue. DACA holders will achieve some form of permanent or semi-permanent status that will allow them to remain in the US.

As I said in a prior post about DACA:

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today [(November 8)] the Ninth Circuit ruled that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The Trump Administration has already appealed the decision of the Ninth Circuit to the Supreme Court. This is an issue that will likely be decided within the next year or so through a bipartisan deal.

The Spouses of H-1B Visa Holders Will Lose their Work Authorization While They Wait for a Green Card

H-1B spouses will lose their lawsuit to retain their work authorization while waiting for their green card.

There is currently a lawsuit about whether spouses on H-4 visas will be allowed to obtain work authorization while they wait for their green cards after their I-140 is approved. This is especially important to immigrants from India and China as they may wait years (sometimes even more than a decade) until they are able to get a green card after their spouse’s immigrant petition has been approved. Unfortunately, I believe that they will eventually lose their lawsuit. Administrative agencies have a lot of authority to change their positions on regulations.

Conclusion

I do not believe that it will be a year with as many changes in labor and employment law (at the federal level) as last year because Congress is split. However, many states will undoubtedly try to fill in the gap. The Supreme Court could also cause major changes in labor and employment law by reviewing whether sexual orientation is protected under Title VII.

These are my 2019 labor and employment law predictions. I’ll write a post at the end of the year to let you all know whether my labor and employment law predictions came true.

Happy New Year Everyone!

The information provided is my own and does not reflect the opinion of my firm or anyone else.

What Happens to Labor Unions After Janus?

Published by Brett Holubeck on July 12, 2018

By now most people have heard about the Supreme Court’s decision in Janus v. AFSCME (Janus v. American Federation of State, County, and Municipal Employees, Council 31). The Supreme Court determined that public-sector employees have a right, protected by the First Amendment, to not pay agency fees. Essentially, public-sector employees should not be forced to subsidize the speech of other employees. Public-sector employees that have paid these fees no longer have to do so. Many union members may drop their membership since the cost difference between being a non-member and a union member has increased. Several states, including New York and Hawaii, have already stopped collecting agency fees from the non-members of the public-sector unions.
Everyone realizes that the decision will force labor unions to change, but no one is sure exactly how they will change. Some labor unions will continue to decline, but others may flourish in the new environment created by Janus. In addition to the Janus decision, this year has revealed a resurgence of some public-sector labor unions. Notably, teachers in Arizona, Colorado, Oklahoma, and West Virginia, struck and negotiated for higher salaries and other benefits. West Virginia is particularly noteworthy because it was the first state to conduct these strikes, the entire school system in the state was shut down for nearly two weeks, and the teachers were supposedly not able to strike.

There is no doubt that the Janus decision will force unions to rethink their past strategies. They will likely see major membership losses in the 22 states affected by the decision. However, the loss of these members may entice several labor unions to reshape their union by mimicking the actions of the teachers in West Virginia and elsewhere.

The Janus decision will also have ripple effects as related issues including exclusive representation requirements (the union must represent both members and non-members) and the rights of private sector workers in the 22 affected states are resolved. There is already an active case, Sweeney et al v. Madigan et al, alleging that a labor union should not be forced to represent non-members. According to the complaint, forcing the union and its members to “use their money to speak on behalf of the non-member” violates the First Amendment rights of the labor union and its members. Moreover, some states may adopt new laws to protect labor unions in light of the Janus decision. According to the New York Post, New York State Representative Richard Gottfried intends to introduce what he calls “a workaround” to the Janus decision. Richard Gottfried said that “public employers, as part of collective bargaining with public employee unions, should pay for the costs of operating the unions,” according to WCBS News Radio 880. This may mean that taxpayers will bear all of the cost of funding collective bargaining.

Companies, labor unions, and other interested parties will continue to file lawsuits and lobby to either expand the Janus decision or to reduce its effects. The short-term consequences of the decision are just beginning to be felt, but the long-term effects of Janus are yet to be determined.

The information provided is my own and does not reflect the opinion of my firm or anyone else.