In a recent post on the Fisher Phillips blog, I and my colleagues examine this issue.
Here is the first paragraph:
The NLRB’s top prosecutor just issued a memo which seeks to bar employers from convening employee meetings on working time to address union representation unless they provide employees specific assurances that participation is completely voluntary. These so-called “captive audience” meetings are routinely conducted to educate employees – particularly in response to arguments advanced by organized labor outside the workplace – and have been a staple in the American workplace since Congress amended the labor laws to recognize employer free-speech rights almost 75 years ago. Although a handful of states have enacted statutes attempting to restrict such meetings, the April 7 memo from NLRB General Counsel Jennifer Abruzzo (formally known as GC Memo 22-04) represents an unprecedented development in the annals of modern labor law. What do employers need to know about this significant step – and what should they do about it?
2020 has arrived and so have my 2020 labor and employment law predictions. One side note, I am not going to repeat my 2019 labor and employment law predictions that are likely to happen in 2020 (new states that protect medical marijuana use outside of work, increased sexual harassment charges, the elimination of the H-4 EAD program, the NLRB issuing the joint employer standard, more states passing paid family leave, independent contractor issues arising, notices of inspection (I-9 inspections) increasing, and the Supreme Court’s decision on DACA.) So what’s new in 2020? Let’s dive right in.
1. Minimum Wage Increases Will Occur in a Number of States and Ballot Initiatives Will Be Undertaken to Get Them on the Ballot in Additional States
In the world of oil and gas, there
are a lot of companies with debt maturities coming due in 2020 or 2021 (see this
article from the Wall Street Journal discussing the $120 billion debt wall these companies will face
through 2023), and oil prices have been below
the break-even point for many drilling sites. It is possible that there could
be a number of layoffs in that industry. Of course, the situation in Iran (the
death of Soleimani and Iran’s reaction to his death), any decisions from OPEC,
and any possible economic slowdowns or other geopolitical issues could change
this.
The workplace and workforce is changing even if the situation for retail stores and the oil and gas industry improves and we avoid a recession. Many people have read articles about the jobs that supposedly won’t exist in the future, which is something to keep an eye on. In short, layoffs are a part of life and the economy. We can expect them to continue or increase in 2020.
3. Onboarding and Employee Retention Continues to Grow in Importance
No matter what happens next year
with layoffs, there will be a lot of workers that will need to be trained,
retrained and onboarded. Companies are finally starting to recognize they need
to find, adequately train, and keep their employees because unemployment is at
a low. In short, businesses are going to want to find the right people, train them
well, and try to keep them given the lack of qualified and available employees.
Remember, onboarding is more than just orientation. It is a long process to
help workers become established in an organization and usually occurs over an
extended period of time through a set process to help the employees adjust to
their new job. Onboarding also takes more importance as certain jobs are
eliminated, new technology is brought into a company, and workers change
positions.
The Bureau of Labor Statistics found that “Over the 12 months ending in October, hires totaled 69.8 million and separations totaled 67.4 million, yielding a net employment gain of 2.4 million. These totals include workers who may have been hired and separated more than once during the year.” Again, there were 69.8 million people hired between October 2018 and October 2019. Onboarding, training, and employee retention have gained in importance over the past few years and will continue to do so.
4. The Governmental Agencies Gear Up for the Election by Releasing a Lot of New Regulations Before the Election Happens
The Congressional Review Act allows a new Congress to
disapprove of any new regulation within a 60 legislative day window by a
majority vote. If the vote succeeds, then the rule does not go into effect. It
was only used once before the Trump administration. The Republican Congress
under Trump used
it 14 times.
The Trump administration and the agencies will push out new regulations and decisions to avoid their regulations being undone either by the Congressional Review Act or by the heads of the agencies after the election (assuming that a Democrat is elected). Many agencies that previously did not engage in much rulemaking are also engaging in rulemaking to avoid their new rules being overturned easily (through decisions). You can look to the NLRB (joint employer rule) and the DOL (overtime rule and joint employer rule) as prime examples of this.
5. Candidates Push Their Election Agendas Which Will Give us a Peek into the Labor and Employment Landscape in 2021
I wrote
awhile back about the Democratic candidates. At that time there were around
25 different candidates. Most of those have basically fallen away. We can
expect that President Trump and the eventual Democratic candidate will propose
a number of different ideas that will affect the workplace.
I expect President Trump to push limiting immigration based
on the belief that this will protect American jobs and perhaps he will also
propose some kind of paid family leave program as he discussed in his 2016
campaign.
The Democratic candidate can be expected to support raising the minimum wage to $15, the PRO act (that would transform union organizing, eliminate right to work states, permit card check (union elections would not need to happen if enough authorization cards were signed), expand the definition of ‘joint employer’, permit secondary boycotts (targeting neutral worksites), adopt a more restrictive definition of independent contractors, and much more), and a paid family leave program. Depending on the final Democratic candidate, more proposals could go into effect. Moreover, the success of these proposals will depend on the final composition of the House and Senate (in addition to who controls the White House).
6. Union Elections and Organizing Increases this Year Especially in the Tech Sector
Unfortunately, I did not get to publish this blog post before this prediction started to come true (I swear I wrote this before I heard about the CWU trying to organize video game developers, you can ask my kids, but who can trust anyone under 5 years old…). The tech sector is going to become an increasing target of union organizing. Unfortunately, many companies do not treat their employees right (they work long hours, their concerns are not addressed, and many of their coworkers are let go for what feels like no reason to them). Mistreated employees are always the biggest threat and cause of union organizing. The tech sector is ripe for organizing because many companies fit this model.
7. More States Pass Employment Related Laws- Especially Variations of the Independent Contractor Law that California Adopted (the ABC Test)
Employment law has become more fragmented and more influenced by multiple sectors of government (federal, state, county, and city) with a greater influence at the local level than ever before. This is going to continue. This fragmentation affects almost every area of employment law (labor law has not been affected to the same degree). For example, a number of states have their own overtime salary threshold so the new federal overtime rule does not affect them and a number of states have begun to tighten their independent contractor rules (which means that companies must follow these complex rules for each state that they operate in).
This one is not so much a prediction as it is a statement of fact. With the current administration being more business friendly (and depending on the results of the election in 2020, that may continue for 4 more years) the trend of employment law is increasingly being done at the state and local level.
8. Mental Health Issues and the Workplace Become More Important
Nearly 1
in 5 adults had a mental illness in 2016. Carley
Sime at Forbes wrote “Mental health and substance abuse
cost US businesses between $80 and $100 billion annually.” That is a
cost that companies cannot ignore. In 2020 and throughout the decade more
companies will recognize this cost and offer treatment and solutions to their
staff.
The good news is that more companies are discovering that
treatment works. The Center for Workplace Mental Health found that 80 percent of employees treated for mental health problems reported improvements in both their
productivity and job satisfaction.
More companies are recognizing the effects of mental health and wellbeing on their workforce and taking steps to prioritize these issues and ensure their employees feel supported.
9. There will be a Ton of Issues Around Free Speech and the Workplace (i.e. It is an Election Year).
This one feels like cheating. It hardly counts as a
prediction. It is an election year.
Trump is a polarizing figure. Politics seems more divided
now than any time in the last twenty years or so. “A 53-point [difference]
separates the percentage of Republicans (65%) and the percentage of Democrats
(13%) who believe the United States is headed in the right direction, according
to data from the latest Economist/YouGov
poll.”
We may be more divided now than any time since Thomas
Jefferson and John Adams faced off (you really need to watch this video on what they said about each other in the campaign to understand
how bad it was) With this being an election year, we also get to experience
attack ads (here is a
history of attack ads), which means that more people will have more fodder
to attack supporters of one candidate.
Additionally, from a workplace perspective, the election will likely cause more people to talk about politics at work, which can be another polarizing situation you may want to be smart about. You can read about what to do here. This is something that will probably only get more divisive before it improves (some time after the 2020 presidential election but before the 2022 midterms). With the impeachment and the bitterness of this election we have reached a bit of a tipping point in divisive politics and can perhaps expect them to be more divisive and interfere with the workplace more than ever.
10. The Cases Before the Supreme Court Put Increased Focus on Religion, Transgender Issues, and Sexual Orientation in the Workplace.
The Supreme Court cases on the ministerial exception add to this issue. Here is a breakdown from SCOTUSblog on those cases:
In Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the justices will consider the scope of the “ministerial exception,” a court-created doctrine that prohibits courts from reviewing employment decisions by religious employers involving their ministers. Under the exception, courts must determine which employees serve a “ministerial function.” In these cases, which will be argued together, two California Catholic schools are challenging rulings by the U.S. Court of Appeals for the 9th Circuit that teachers who sued the schools after the teachers’ contracts were not renewed were not, despite their religious duties, “ministers” for purposes of the exception. The schools tell the justices that the issues presented in the two cases are “vital to the daily operations of religious organizations,” and that “getting it right is crucial in protecting church-state relations.”
All of these Supreme Court decisions will cause a lot of talk about the place of religious beliefs and how they relate to the issue of sexual orientation and transgenderism/gender identity.
11. States Continue to Implement Restrictions on Noncompetition Agreements
This is something that is already happening in a number of
states and now the FTC has also begun to weigh in on the issue. The Federal
Trade Commission recently held a public workshop to “examine whether there is a
sufficient legal basis and empirical economic support to promulgate a
Commission Rule that would restrict the use of non-compete clauses in
employer-employee employment contracts. This follows a labor market workshop hosted by the Department of
Justice’s Antitrust Division in September 2019.”
Washington has a law that went into effect on January 1 that
prohibits noncompetes for employees that earn less than $100,000 and
independent contractors that earn less than or equal to $250,000.
Maryland also enacted a similar law last year that prohibits
noncompetes for “employees
earning equal to or less than $31,200 annually or $15 per hour.”
Maine’s
law went into effect in 2019 and prohibits employers from entering into a noncompete agreement with an
employee if they earn wages at or below 400% of the federal poverty level.
New Hampshire
passed a law in 2019 that prohibits
employers from entering into or enforcing agreements with low-wage employees
(those earning less than 200% of the federal minimum wage currently $14.50 an
hour).
Rhode Island’s law went into effect on January 15. It prohibits noncompetes for nonexempt
employees, certain graduate and undergraduate students, people 18 and under,
and low wage employees (those earning less than 250% of the federal poverty
level currently $600.48 per week ($31,225 / 52))
Conclusion
2020 is going to be a big year for employment and labor law issues. Employers should prepare for these upcoming changes to ensure that they are staying a step ahead of the competition. As usual, these issues will be followed this year at the Texas Labor Law Blog, and I hope you all stay ahead of the curve this year!
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.
Getting an unfair labor practice charge against you
can be confusing. Let’s start with the basics.
An unfair labor practice charge is filed by an employee or a union with the National Labor Relations Board alleging that an employer or a union violated the National Labor Relations Act. The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to discipline or fire someone because they engage in protected concerted activity.
Some of the most common violations that employers
commit are:
Forbidding
employees to discuss their salaries
Firing
or disciplining employees that discuss the union or solicit employees to sign
union authorization cards
Disciplining
or firing employees that complain about working conditions, pay, or safety
issues with or on behalf of a group of employees.
You can read more about other ways that the NLRA
protects employees in one of my earlier posts.
The
Best Approach is to Avoid Unfair Labor Practices
If you do not violate the law, then it is less likely,
although not impossible, that an employee or a union will file an unfair labor
practice charge. Employees can and do file frivolous lawsuits and unfair labor
practice charges.
The best way to avoid an unfair labor practice charge
is to train your managers, supervisors, and HR staff on what they can and
cannot do. The easiest way to remember what can and cannot be done is to remember
TIPS.
Threaten
Interrogate
Promise
Spy
Employers cannot threaten employees with any adverse
action (discipline, termination, reducing pay) because they support a union or
engage in protected activity. Companies cannot interrogate employees on whether
they support a union. Employers cannot promise employees benefits or better pay
to encourage employees to stop supporting a union. Finally, employers cannot
spy on employees that are engaging in union or protected activity (like having
a meeting offsite about whether employees should join a union).
So, what happens when you have an unfair labor
practice filed against you?
The NLRB
has a chart that shows exactly what happens. Let’s review the steps
before a hearing occurs.
The
Investigation
Companies need to act fast when they receive an unfair
labor practice charge from the NLRB. Obviously, employers should seek legal
counsel if they are not represented. To
respond companies should:
Carefully read the unfair labor practice charge
Who was involved in the incident(s)?
When did they occur?
What violation does the charge allege that the company committed?
The employer will also receive a Questionnaire on Commerce Information. It is best to agree or stipulate that the company is subject to the jurisdiction of the NLRB rather than filling out the form. Employers typically do not want to reveal more information than they need to.
Employers
need to be careful about speaking to employees that were witnesses to the
events leading to the unfair labor practice charge.
Matt
Austin explains the basics of what employers need to do to speak
to employees in these situations:
Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives: 1. communicate to the employee the purpose of the questioning; 2. assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and 3. obtain the employee’s participation in the interview on a voluntary basis.
Basically, employers need to let the employee know that they are interviewing the employee because of the incident within the unfair labor practice charges. Employers must inform the employee that they will get no benefit or punishment from speaking with the employer or the employer’s attorney. Finally, the interview is voluntary and can be stopped at any time. Employers should never speak with the charging party (the person that made the accusations) about the incident. None of this applies to members of management or human resources.
The NLRB will typically wish to speak with the members of the management team that are alleged to have committed the offenses committed by the company. Most employers benefit from conducting their own careful investigation of the events before they allow the NLRB to interview their employees.
The
NLRB will Want to Take Affidavits from Management Witnesses
As part of the investigation, the NLRB will seek to take affidavits or statements from management witnesses. Companies have a right to have an attorney present for all witnesses that are members of management or human resources staff (agents of the company) but attorneys cannot be present for any affidavits taken from employees that are not members of management. Employers cannot stop employees that are not members of management from speaking with the NLRB.
Employers have a few options when it comes to determining whether to provide management witnesses. They can:
Refuse to provide any information to the investigator. This will usually result in a complaint being issued against the company because the only evidence will be from the charging party. Employers may wish to do this if they believe that this will go to a hearing because the NLRB will ultimately issue a complaint. Companies also need to be aware that the NLRB will often share information with the charging party. The NLRB rarely seeks an investigative subpoena to force the employer to provide information, so it is likely that you will be facing a complaint that will include all of the allegations from the charge.
Call the investigator and orally discuss the company’s position but refuse to make management witnesses available for affidavits or to provide any documents.
Provide the management witnesses for affidavits and have an attorney present to assist witnesses. If an employer plans to do this, then it should also file a statement of position explaining its defenses before the affidavits are taken.
Some
Tips If You Provide Management Witnesses for Affidavits
The affidavits are incredibly important to help the NLRB determine what happened. If something is said incorrectly in an affidavit, then the opposing party will use that against a company should the case go to a hearing. The NLRB or the union (if they are the charging party) will impeach company witnesses with incorrect statements. It looks a bit like this scene from My Cousin Vinny, but with documents. No company wants this to happen to its witnesses, which is why preparation for an investigation is crucial.
Each witness and any attorneys present can review the
affidavit that the NLRB takes. The NLRB takes affidavits using a computer, so errors
that a witness or their attorney find should be redone to make a clean copy of
the affidavit. Be sure to ask the investigator to do this.
Witnesses must be careful that the NLRB agent does not pin a witness down with statements like “I spoke with no other individuals about the incident.” A witness may remember more information later, so be careful of statements that lock a witness into a position unless the witness is absolutely sure that they will not remember more information later.
If the investigator does not ask a question or get
information that a witness believes is necessary for the investigation, then they
should speak up and get the information into the affidavit. The affidavit is
your chance to provide any information that will be helpful to the employer’s
case.
The
NLRB’s Conclusion of the Unfair Labor Practice Investigation
Once the affidavits are completed, the employer should
consider providing an additional statement of position concerning the facts of
the case. This will be the last chance to state its position and defense before
the NLRB reaches its conclusion on the unfair labor practice charge.
Once the NLRB makes a determination, then it will either
dismiss all of the allegations (i.e. the employer/defense wins) or the charging
party will withdraw the charge, dismiss some of the allegations, or dismiss none
of the allegations. If the NLRB dismisses all of the allegations, then there is
nothing left for the employer to do. If the NLRB dismisses some but not all of
the allegations or none of the allegations, then it will be time to consider
settlement. Each case is unique, so the best option is a fact specific
determination that will need to be carefully discussed.
Conclusion
Responding to an unfair labor practice charge from the NLRB is difficult, but there are a number of things that employers can do to respond. Employers must investigate allegations of unfair labor practices carefully before they decide the proper approach for their company.
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.
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
