As a result of the Executive Order, Vice President Harris will chair a task force to find ways to encourage worker/union organizing and collective bargaining. The task force may propose new laws, regulations, and other changes to support union organizing.
During Biden’s address yesterday, he said “Wall Street didn’t build this country. The middle class built this country. And unions build the middle class. And that’s why I’m calling on Congress to pass the Protecting the Right to Organize Act – the PRO Act — and send it to my desk to support the right to unionize.” If Congress passes the PRO Act it would end right to work laws, make union organizing easier and, make it harder to be a gig worker or independent contractor. Just three more Senators are needed before the PRO Act will be brought to the Senate floor for a vote .
All of these events make understanding union organizing even more important for businesses and human resources professionals. Companies and human resource representatives that are unprepared will make mistakes that could lead to liability and lawsuits.
What is in this Episode?
In this episode, I discuss the recent union organizing drive at Amazon including some of the reasons that employees may have voted for a union and why the employees ultimately voted down the union.
I also explore how organizing drives typically begin and the differences between the two types of organizing drives: union driven and employee driven. I analyze what causes these two different types of campaigns to start and what employers can do before a campaign begins.
Finally, I discuss what an employer can do during a union organizing campaign. I also review the concept of TIPS (threaten, interrogate, promise, or spy) so that employers can learn the basics of what they cannot do in a union organizing drive.
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.
It is that time of the year again! The time to review my 2020 labor and employment law predictions from last year to see how well they did or did not hold up. This year’s predictions are a special kind of train wreck with how COVID-19 totally changed the outcome of many of all of these predictions.
Below are my 2020 labor and employment law predictions and my review of them.
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
Florida, as I predicted, passed the $15 minimum wage ballot initiative with 60.82% of voters voting to pass the measure and 39.18% voting to reject the measure. A 60% supermajority was needed for the bill to pass.
Virginia passed a minimum wage law and the increase is set to take effect on May 1, 2021. Originally, the increase was to occur on January 1.
The other ballot initiatives for minimum wage increases or minimum wage increase related issues in Arizona, Idaho, and Missouri did not make it on the ballot.
This is something that we could see expanded into the Biden administration as he supports a $15 minimum wage. It will depend on the outcome of the senate races.
2. Retail Closures and Other Layoffs Continue to Remain High or Accelerate
This prediction turned out to be true, but not for the reasons that I initially thought. The surge in bankruptcies and layoffs is due overwhelmingly to the coronavirus pandemic, the lockdowns, and individuals voluntarily cutting back on their shopping and outings.
According to Retail Dive, over 29 major retailers have declared bankruptcy this year compared to only 17 from last year. In 2019, over 9,500 stores closed. There is not a final count yet for this year, however, it seems likely that this will be one of the worst years since the Great Recession and maybe even the Depression.
5. Candidates Push Their Election Agendas Which Will Give us a Peek into the Labor and Employment Landscape in 2021
This is obvious again. Rather than spending time on Trump’s agenda, which has advanced a lot over the last few years, let’s turn to Joe Biden since he will become the next president. He has outlined a lot of proposals on his campaign site:
○ ban employers’ mandatory meetings with their employees, including captive audience meetings in which employees are forced to listen to anti-union rhetoric; and
○ reinstate and codify into law the Obama-Biden Administration’s “persuader rule” requiring employers to report not only information communicated to employees, but also the activities of third-party consultants who work behind the scenes to manage employers’ anti-union campaigns.
“He will ensure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns.”
He supports card check so that if a majority of employees sign an authorization card, then they can form a union without an election.
End right-to-work laws that allow workers that don’t want to join a union the right to not be forced to join one. (read more about these here)
Permit intermittent strikes
Allow independent contractors to bargain collectively
Increase the minimum wage to $15
Eliminate non-compete clauses
End mandatory arbitration clauses
There will be a seismic shift in labor and employment law under Biden.
6. Union Elections and Organizing Increases this Year Especially in the Tech Sector
The worker is free from control (they determine how to do the work),
The work is outside the usual business of the company, and
The worker is customarily engaged in an independently established trade occupation, or business.
It is difficult for many workers to meet all three elements.
8. Mental Health Issues in the Workplace Become More Important
This is the saddest prediction that came true. The coronavirus has affected everyone. It is probably one of the few events from the last 100 years that has affected practically every single person throughout the entire world.
There was a lot of controversy about politics in all aspects of life. In fact, according to a survey conducted for the American Psychological Association, 68% of adults indicated that the 2020 U.S. presidential election was a significant source of stress in their life.
10. The Cases Before the Supreme Court Put Increased Focus on Religion, Transgender Issues, and Sexual Orientation in the Workplace
There have been a few cases this year concerning religion, sexual orientation and the workplace (as a result of the Supreme Court’s 2019 Bostock v. Clayton decision that made discrimination based on sexual orientation and gender identity illegal under Title VII), but most of them have been overshadowed by COVID. Virginia enacted a law this year to make discrimination based on gender identity and sexual orientation illegal.
There are three cases before the Supreme Court around religious issues this term (Tanzin v. Tanvir, Fulton v. City of Philadelphia, and Uzuegbunam v. Preczewski) shows the tension and need for clarification around legal matters involving religion. None of these cases deal directly with labor and employment law, but they may shed light on how the court will rule on future cases that do.
11. States Continue to Implement Restrictions on Noncompetition Agreements
The law will prohibit non-competes for employees whose average weekly wages are less than the average weekly wages for employees in Virginia. It applies to independent contractors as well, but it does not apply to employees that earn the whole or a majority of their compensation through commissions, bonuses, or other incentives.
2020 was a year to remember but not in a good way. It will be remembered more in the way that many people remember the years of the Great Depression. The year was consumed by the coronavirus/COVID-19. Three of the top ten google searches in 2020 were related to the virus. Hopefully, 2021 will be a much better year. Wishing you and yours a safe and happy new 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.
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.
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
