Tag: Labor Unions

Texas Employer’s Guide to COVID-19 (the Coronavirus)

Published by Brett Holubeck on March 24, 2020

Image of the COVID-19 (new Coronavirus) to illustrate what employers are dealing with. — Photo by CDC on Unsplash

It is a full-blown pandemic. Companies are actively trying to figure out the next steps that they will take in the current situation to keep their businesses operating and deal with employee issues.

There have been a ton of posts for various companies with what they can do. I have yet to see one that has some of the Texas specific issues that employers face. I’ve put together some resources and insights below for employers.

The Texas Workforce Commission (TWC) has put together some answers to commonly asked questions here.

The Equal Employment Opportunity Commission (EEOC) also has some guidance available for employers about the Americans with Disabilities Act and COVID-19.

Occupational Safety and Health Administration (OSHA) has published guidance on preparing for COVID-19 and a page with more information on COVID-19.

The Center for Disease Control and Prevention (CDC) has information on COVID-19 for employers. It also provided guidance on how employers should treat critical infrastructure workers who may have been exposed to someone with COVID-19.

The Department of Labor (DOL) also published guidance on the new Families First Coronavirus Response Act and other issues.

The DOL has also released some Questions and Answers on the Families First Coronavirus Response Act.

Beyond those resources, here are some common questions that employers have had and some of the most important issues for employers to consider.

Alternatives to Layoffs

Before you consider laying off employees please consider other options that you do have. It is a very tough situation right now for all businesses and people, but there still are some ways to help your workers.

One option is to reduce employee hours. Texas has a Shared Work program.

It is essentially a program where businesses reduce employee hours for affected employees by at least 10% but no more than 40% for at least 10% of the employer’s workers in that particular unit. Workers that experience a reduction in hours can then get partial unemployment to supplement their hours.

The program allows a business to keep its employees and supplement their wages while they continue to work.

You must apply for a shared work program online and can do so through this link.

Employers can also reduce employee pay (there may be special steps for exempt employees) or offer a voluntary early retirement or severance package for anyone that wants to take it.

Terminating Some Employees

If you are not triggering the WARN Act but are terminating some employees and are looking for criteria to use to determine which employees to lay off, then you can find some tips on being consistent in disciplining and terminating employees here. To prevent an employment law claim you need to make sure that you document the reasons for termination. If it is related to the economic downturn and/or COVID-19, then you can put that on their termination notice.

When you are laying off some of your workers but not all of them it is important to use criteria to determine who will and who will not be laid off so that your policy is not discriminatory. You should use some objective criteria like seniority, required skills, or other factors to determine who to terminate.

Plant/Facility Closings or Mass Layoffs

Employers with more than 100 employees are required to give notice to their employees, the state, any union (if the company is unionized), and the chief local government official when they shut down a facility or layoff more than 50 workers for more than 6 months under certain conditions. You can read more about conducting a mass layoff or plant closing and the requirements under the WARN Act in my earlier article.

Small Business Loans for Businesses Affected by COVID-19

Texas small businesses that are affected by COVID-19 may be eligible for loans to help their business during this time. You can learn more about applying for loans on the Texas Economic Development site and the US Small Business Administration site.

Restructuring Work and COVID-19

Many people are working from home at this time, but only 42% of workers have worked from home occasionally. The other workers need to be at work to do their jobs. Some of these workers like those in the restaurant industry may not be able to perform their normal work because the restaurant is shutdown. You have the option to shift them into doing food delivery or other work if it is available and they are willing to do it. Do not forget to train the employees and continue to see what else they need to do to be successful. Many of them will be performing duties that they had not been performing before. For example, you may need track and pay the delivery driver’s actual expenses or the IRS mileage reimbursement rate if their costs to deliver food will take them below the minimum wage.

Remote Work and COVID-19

Managing remote employees can be challenging. Here are a few things to remember while you have employees doing remote work that did not normally do so:

Be aware of and create a plan to deal with confidential information and cyber security issues. The employee’s spouses and children may accidently view information if the employee leaves their computer out. There may also be issues with the employee using their personal Wi-Fi to transmit sensitive materials and other issues.
Tracking time for hourly employees is essential to ensuring that you are properly paying your employees and not creating liability.
Workplace injuries that occur at home must be reported and companies will need to file a claim with their worker’s compensation carrier for injuries that the employees have.
Make sure voicemail and calls are being forwarded.
Ensure that the employee has access to company files that are stored on any shared server or on the cloud.
Put procedures in place to manage your team and ensure that work is completed.

I wrote a much more detailed post about what companies must consider for remote employees in light of COVID-19. You can read it here.

What Can You Ask an Employee that is Sick with COVID-19?

The EEOC stated that:

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Can You Send a Sick Person Home If They Have COVID-19?

Yes, you can send a sick person home when they are exhibiting the symptoms of COVID-19. You can also require that they stay home while they are exhibiting the symptoms of the coronavirus.

Can an Employee Refuse to Come to Work Even Though They Are Not Sick?

Maybe. An employee cannot be forced to work in an unsafe environment. If your business is not following the latest guidelines from OSHA and the CDC, then it is possible that the person could file an OSHA retaliation claim. There may also be ADA issues where an employee’s request for time off or to work from home needs to be accommodated or at least considered. They may also be entitled for leave to care for their child under the new federal rule if their child is no longer in school. You may allow the employee to use their PTO or go on an unpaid leave of absence.

If none of these situations apply, then you can let the employee go if the employee is simply refusing to work. You do need to follow your policy though and carefully consider the consequences of firing someone in this situation. Obviously, some employees (e.g. healthcare workers) are required to work with people that may have COVID-19 or be at a risk for exposure. Employers are right to take action to ensure that these employees work and to fire them if they refuse.

Can You Send Someone Home that May Have Been Exposed to COVID-19?

Companies can require employees to remain home if they have been to areas where the illness has been present or when they believe that the employee has been exposed to the virus. Companies must careful not to engage in discrimination and to be consistent in how they engage in the policy. There has been issues with some companies discriminating against people of Asian descent.

Returning to Work and COVID-19

You can require an employee to get a doctor’s note that an employee is fit to return to work when an employee has a positive test result for COVID-19.

It is likely better not to require the employee to get a doctor’s note. Under the current circumstances it may be very difficult to obtain a doctor’s note and may take valuable time away from the doctors. You may instead seek some documentation from a local clinic or other source to certify that the person does not have COVID-19. You can also use your best judgment to take an employee back to work after a certain period of time when they no longer have the disease.

Caring for Children That Are Out of School Because of School Closures

Many states have laws that allow parents time off to care for children that are not in school. The new legislation that was passed at the federal level also has a provision that provides parents that need to care for their children 10 weeks of leave paid at 2/3rds of their regular pay if they are unable to work because they need to care for a child under 18 whose school or day care provider is closed because of COVID-19.

There are a number of items that businesses must maintain to obtain the tax credits for this leave. You can read about it here.

Families First Coronavirus Response Act

The government passed the Families First Coronavirus Response Act, which requires companies with less than 500 employees (covered employers) to do the following as explained by the DOL:

Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

Moreover, as noted by the DOL, these covered employers must also provide the following benefit for employees that have worked for them for at least 30 days:

Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

To pay for this the government has stated that covered employers will be able to qualify for a dollar-for-dollar reimbursement through tax credits.

The law goes into effect on April 1, 2020. The provisions above will be in effect through December 31, 2020.

There are a number of items that businesses must maintain to obtain the tax credits for this leave. You can read about it here.

What Should You Do If An Employee Has COVID-19?

Other than sending the employee home if they test positive but have not had symptoms or otherwise were not home for some reason what should companies do? Companies are not required to shut down if an employee tests positive. The virus has been found to be able to live on plastic and metal surfaces for 2-3 days, so it may be prudent to wait for that time to pass before reopening the company. Another option is to thoroughly clean the work area of the employee that has been found to be positive with the COVID-19 virus. You should also ask the employee to inform you of who they were in contact with so that you can inform those employees that may have been contact with an employee (do not mention the employee’s name) so that they can take appropriate measures. Generally, you should not disclose the employee’s name as the ADA and other laws prohibit disclosing medical information. As noted by Joseph J. Lazzarotti, ADA regulation 1630.14(d)(4)(i) provides a few exceptions to treating an employee’s medical condition as a confidential medical record:

Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
Government officials investigating compliance with this part shall be provided relevant information on request.

These are narrow exceptions but may apply in your workplace. You need to carefully assess when they apply to your business if you intend to use them.

Employers May Also Benefit From Submitting a Mass Claim for Unemployment Benefits

Submitting a mass claim is a way to streamline the unemployment benefits process for your workers and to prevent businesses from receiving a ton of notices regarding unemployment claims. Companies can also submit severance and wage information to streamline the process for their employees. Normally, companies need to submit the claim at least 5 business days before the layoff occurs, but this has been waived in the current crisis. You can read more about Mass Claims on the Texas Workforce Commission site here and can file a claim here.

Companies with Labor Unions

Companies cannot make unilateral changes to a mandatory subject of bargaining (such as changing workplace duties, increasing paid time off benefits, or bargaining about the effects of a layoff). You can review my article on negotiating a collective bargaining agreement to determine your obligations to negotiate. There may also be rules about laying employees off within your collective bargaining agreement that you will need to review to apply them to your business (e.g. bumping rights).

Companies should be aware that the CARES Act (the COVID-19 stimulus bill) has a provision that requires companies with 500 to 10,000 employees that take a loan through the act to remain neutral in any union organizing attempt during the course of the loan. The Act does not define neutral, but this will likely be interpreted as requiring the company to follow similar requirements when the company signs a neutrality agreement during any organizing campaign. It would prevent the company from holding meetings, passing out literature, and even correcting misstatements that the union makes. Any company that needs a loan should carefully weigh this factor before applying.

Conclusion

We can do this. This will be a difficult time, but there is a way through this crisis. Employers need to do everything that they can to keep their business operating and keep their employees safe.

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.

Negotiating a Collective Bargaining Agreement

Published by Brett Holubeck on February 14, 2020

Two people shaking hands to demonstrate that a collective bargaining agreement has been formed. — Photo by Cytonn Photography on Unsplash

In a past post, I discussed how to respond to union organizing. But what happens if the employees have an election and a union is voted in or if the company has had a collective bargaining agreement for years. What do employers need to know when negotiating an agreement?

As a reminder, a collective bargaining agreement is an agreement between an employer and the union that represents a group of the employer’s employees. It contains the provisions that the parties agree will govern the workplace. The National Labor Relations Act requires the company and the union “to meet at reasonable times and confer in good faith” to try to negotiate a collective bargaining agreement. Employers and the union are required to bargain about the “rates of pay, wages, hours of employment, and other conditions of employment” under the Act. However, neither party is compelled by law to agree to any specific proposal.

Bargaining in Good Faith

Good faith bargaining is only understood in the context of bad faith bargaining. Bad faith bargaining, sometimes called surface bargaining, is not the same thing as an employer lawfully adopting a position at the bargaining table and trying to stick to it. The NLRB considers the underlying reasons for company made proposals and a willingness to compromises when it considers whether the company made a good faith attempt to bargain.

For example, consider a case where the union proposed a wage of $30 an hour for a certain type of job and the company proposes a wage of $20 an hour. The company can demonstrate bargaining in good faith if it can show that the market rate for the position is $20, it pays employees in nonunionized facilities in the same position the same wage, and it has had no trouble finding employees at this wage rate. The employer here is likely bargaining in good faith.

However, consider the opposite scenario. The union proposes a $20 wage for a certain type of employee in a unionized facility, the same type of employees in the employer’s other nonunionized facilities receive the same wage of $20 per hour, and $20 is the market rate for the type of employee. However, the company refuses to budge in its offer of paying $10 an hour. This is likely bad faith bargaining as there is no legitimate business reason for the company to take this position, and it seems to prevent the formation of a contract.

The National Labor Relations Board recently confirmed this in its Phillips 66 decision (369 NLRB No. 13). In that decision the Board held that examining whether a company is bargaining in good faith requires an evaluation of the totality of a company’s conduct. The Board reiterated that bargaining in good faith “does not compel either party to agree to a proposal or require the making of a concession.” The Board further stated that “even ‘adamant’ insistence on a bargaining position ‘is not of itself a refusal to bargain in good faith.”’

There are also differences in good faith bargaining in initial agreements (first collective bargaining agreements) and collective bargaining agreement’s for established units. It is difficult to make a substantial change, especially when you are taking away benefits from employees, in a contract renewal. A proposal to take away a previously given benefit to employees can result in a charge that the employer is bargaining in bad faith. Considering what proposals to make and what proposals to accept in an initial collective bargaining agreement is thus even more important than what happens in subsequent agreements. The initial agreement sets the framework for any subsequent agreements.

What Employers Can Do in Negotiations

The NLRB lists what employers can and cannot do in collective bargaining:

For example, employers can:

Bargain with the union concerning permissive subjects of bargaining, but not to impasse.
Lock out your employees where your sole purpose in doing so is to bring economic pressure to bear in support of a legitimate bargaining position.
Make changes in the scope and direction of your enterprise – matters that lie at the core of your entrepreneurial control of your business – without bargaining about the change. You must, however, bargain with the union concerning the effects of the change on unit employees. (Whether a particular change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)

What Employers Cannot do In Negotiations

Here is a short list of some of things that employers cannot do, although the NLRB lists more items:

Bypass the union and deal directly with employees. (However, you may communicate to your employees accurate information about your bargaining proposals.)
Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.
Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. (Whether a proposed change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)
Engage in bad-faith, surface, or piecemeal bargaining.

Remember, when a union represents a group of employees an employer cannot make unilateral changes to any area affecting employees when the subject is covered as a mandatory subject of bargaining unless the company and the union have reached an impasse or the union has waived the right to bargain.

Conclusion

Employers that negotiate collective bargaining agreements must walk a fine line to ensure that they advocate for their position but do not violate the law. Companies, and the counsel that represents them, can benefit from examining collective bargaining agreements for similar groups of employees and agreements that the local or international of the particular union representing the employee has put forth. You can view some of these agreements through Berkley’s labor contracts database and through this source on the Department of Labor website. At the bargaining table, employers should generally start with a position that they can make changes to and allows flexibility to make concessions to ensure that they bargain in good faith. It is often best to use outside counsel or at least someone that does not have the authority to make the final call on whether to accept a proposal because the negotiator can tell the union that they need to reach out to upper management to confirm whether a proposal is acceptable, which gives the employer the chance to better determine any financial effects of a proposal and to develop a counter proposal.

Collective bargaining is not easy. Companies that are not careful will have unfair labor practices filed against them. To avoid this, it is important that company negotiators or outside counsel are well prepared before any bargaining begins.

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

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