Labor Relations Update - PowerPoint Presentation

Labor Relations UpdateRecent developments by nlrb and dol _______________________CHANGES SINCE THE TRUMP ADMINISTRATIONJ. E. Jess Sweere Cross, Gunter, Witherspoon & Galchus, P.C.Little Rock/NW Arkansasjsweere@cgwg.comwww.cgwg.com(501) 371-9999(501) 425-9118 - cell© 2017 Cross, Gunter, Witherspoon & Galchus, P.C.All Rights Reserved.

Executive Orders : Update The Obama Administration The Trump Administration

Executive Orders: Overview Executive Orders Update Executive Orders under the Obama AdministrationWhether they are still effective, stalled, or rescinded.Legislation (prior or future) that may effect the validity of the Executive Orders. Executive Orders under the Trump Administration

Executive Orders :Obama Fair Play and Safe Workplaces (a.k.a. “Blacklisting”)(REPEALED) Establishing Paid Sick Leave for Federal Contractors(CURRENTLY IN EFFECT)Notice of Employee Rights Under Labor Laws (CURRENTLY IN EFFECT) Establishing a Minimum Wage for Federal Contractors(CURRENTLY IN EFFECT) Anti-Retaliation Regarding Compensation(CURRENTLY IN EFFECT)

Executive order 13673Rules and regulations published 8/24/16REPEALED March 28, 2017 Fair Play and Safe Work Places (a.k.a. Blacklisting)

Fair Play and Safe Work Places (a.k.a. Blacklisting)What did it do? Mandate that contractors comply with applicable labor laws and disclose violations of labor laws to the government.Including the Family and Medical Leave Act, the National Labor Relations Act, the Fair Labor Standards Act and employment discrimination laws.Violations would be taken into consideration when determining which bid to accept for federal contracts. What happened to it? Texas Judge filed injunction Joint Resolution 37 Passed in both the House and Senate Trump Signed the Joint Resolution which in effect repeals the blacklisting rule.

Executive order 13706Effective  January 1, 2017 Establishing Paid Sick Leave for Federal Contractors

Establishing Paid Sick Leave for Federal ContractorsTo what does it apply? Contracts with the Federal Government Procurement contracts Service contracts Concessions contracts Contracts in connection with Federal Property of Land Any subcontractor of a covered contract If lease space from Federal GovernmentWhat does it do? Ensures that contractor employees can earn up to 7 days of paid sick leave annually, including paid leave for family care. OR Accrual Calculation where employees accrue 1 hour of paid sick leave for every 30 hours worked.

EXECUTIVE ORDER 13496EFFECTIVE June 21, 2010Notice of Employee Rights Under Labor Laws

Notice of Employee Rights Under Labor Laws What does it do? Requires federal contractors to post notice of employees rights to: 1. Unionize AND 2. Participate in concerted protected activity under the NLRB Creates a “pro union” slant without explaining to employees their rights to decertify an unwanted union. Quick Fix.Rescind the executive order requiring Notice.Note: No action taken on this by current Administration to date.

Executive order 13658Effective  january 1, 2015Second increase effective  January 1, 2017Third increase effective  January 1, 2018Establishing a Minimum Wage for Federal Contractors

Establishing a Minimum Wage for Federal Contractors To what does it apply? “New Contracts” issued on or after January 1, 2015 Service Contracts Davis Bacon Act Contracts Leases with the Federal Gov. Food franchises in federal office buildings/military bases and concessionaries at national parks.What does it do?Sets minimum wage at $10.10 per hour in 2015 with an annual increase based on inflation. January 1, 2017 increased to $10.20 per hour.January 1, 2018 will increase to $10.35 per hour. Announced 9/22/17 by DOLHow to change it? Trump could rescind the executive order, along with the implementing regulations – unlikely to do so.

Executive order 13665Effective January 11, 2016 Anti-Retaliation Regarding Compensation (“Pay Transparency”)

Anti-Retaliation Regarding CompensationWHAT DOES IT DO? Amends the Equal Opportunity Clause to Prohibit policies and practices which prevent applicants and employees from freely discussing their pay. Not required to disclose  Simply prevents adverse action. Employers must post these rights.WHAT DOES IT PROHIBIT? Discharging or discriminating against;Any employee or applicant for employment; Because the employee/applicant has inquired, discussed or disclosed the compensation of the employee/ applicant or another employee/applicant.

Update under the new administration and other changes in precedentNational Labor Relations Board

Labor Board CompositionPoised to become RepublicanFive member BoardAppointed by President, Confirmed by SenateCurrent Board: 2 Democrats (Pearce, McFerran)1 Republican (Miscimarra, Emmanuael)Emmanuel appointed by Trump, confirmed by Senate on 9/26/171 Neutral (Kaplan) – appointed by Trump

Labor Board CompositionWhat does the Board do?Decides cases under the NLRASets law by interpreting the NLRAMust wait for a case to change the lawWrites regulations

Labor Board CompositionGeneral Counsel of the NLRBCurrent: Richard Griffin (dem), term expires on 11/4/17Why is the GC post significant?Chief and exclusive prosecutor of NLRA violationsThe GC sets the agendaGriffin has been very ambitious

GC Enforcement InitiativesNew GC is Likely to Abandon Many Current Enforcement InitiativesMcDonald’s Unfair Labor Practice (ULP) litigationOver 100 “joint employer” ULPs set for trialWalmart intermittent strike litigationMany ULP cases on definition of “intermittent work stoppage”Black Friday walk-outs, quickie strikesTies in with “Fight for 15” and “Fast Food Forward”

Intermittent StrikesStrikes are protected, concerted activityBut “intermittent” strikes are unprotected“Quickie” strikes meant to cause business chaos, and a situation of neither “strike nor work”Definition of “intermittent strike” is not clear30 minutes on, 30 minutes off is unprotectedBut what about 1 day?Goes to the heart of Fight for 15, Fast Food Forward tacticsForecast: Repeated one-day strikes likely to be unprotected

How Much Damage Did the Previous Board Do?Extensive rule-making on election procedures (the “Quickie Election” rule)Overturned 91 legal precedents of the NLRBEvery significant decision of Obama NLRB was divided (Dems v. Republicans)

Overview of Potential Reversals by BoardJoint Employer Decision Ambush Election Rule Workforce Democracy and Fairness ActEmployee Privacy Protection Act Union Manipulation of Bargaining Units  Specialty HealthcareThe Representation Fairness Restoration Act Other NLRB Decisions

Browning-Ferris IndustriesNLRB v. CNN Joint Employer

Joint Employer Determines when a business should be considered responsible for the labor practices of another. Responsible for contractors, franchisees, suppliers and vendors violations of labor laws. Browning- Ferris Industries (BFI) Overturned precedent for determining whether an entity is the joint employer of another Company’s employees.Old Test  Direct and Immediate control retained New Test Mere right to exert indirect or potential control is sufficient NLRB v. CNNUpheld the new test

Joint Employer Rule – Potential Future Action Overturn the precedent Once Trump gets his NLRB appointees approved, there will be a pro-business majority. Need case where the new NLRB can overturn the precedent and return to prior standard – direct and immediate control over terms and conditions of employment.Reintroduce Protecting Local Business Opportunity Act Would codify the “direct and immediate” control standard.

January 20, 2016Withdrawn: June 7, 2017 Joint Employers Interpretation Under FLSA

Joint Employers Administrative Interpretation Under FLSA Detailed when a joint employment relationship would exist under FLSA  making both employers liable for the violation. Types of Joint Employment Horizontal When there is a connection between the two employers, such as a common corporate ownershipVertical  Where the employee for one employer works under the direction of a second employer. (e.g. staffing companies or other outside contractors.)Relies on “economic realities”Secretary Acosta withdrew this policy, making joint employment relationships less likely.

Effective April 2015Ambush Election Rule

Ambush Election Rule Changed the Union Election Process by: Which results in increased chances for success of unions but fails to give employers their rights to free speech and due process.

Ambush Election RuleAlso requires employers to turn over to the Unions personal information about its employees, including:Home address;Home and cell phone numbers;Personal email address;Shift schedules; andWork locations

Ambush Election Rule – Potential Future ActionOverturn the precedent Once Trump gets his NLRB appointees approved there will be a pro-business majority – potentially to rescind the Rule. Workforce Democracy and Fairness Act (HR2776) Approved by the House Committee on Education and the Workforce.Provides for a fair hearing process by allowing employers at least 14 days to prepare their case for the Board and allow employers to raise issues during the hearing. Prohibits ambush elections by requiring a campaign period of at least 35 days prior to an election. This will guarantee that workers have an opportunity to hear both sides of the unionization debate.Overturn Specialty Healthcare decision on micro-unit organizing.

Specialty healthcare Union Manipulation of Bargaining Units

Union Manipulation of Bargaining Units – Specialty Healthcare New Standard for Determining the composition of bargaining Units Makes it easier for unions to gerrymander the workforce and force their way in to an employer’s business. “Appropriate” unit vs. “Community of Interest” standard unit. Potential Future Actions The Representation Fairness Restoration Act (HB2629 and SB1217) - Codifies the community of interest standard for bargaining unit determinations sitting in committees. See the Workforce Democracy and Fairness Act (above)Get case before NLRB to overturn Specialty Healthcare.

Electronic Signature CardsNew policy of NLRB in 2015Allows employees to sign union authorization cards electronically, including over social mediaSpawned new forms of organizing, including www.unionizeme.”

D.r. horton/Murphy oil Purple Communications American Baptist Homes Miller & Anderson Banner healthLutheran heritageOther Significantly Impactful NLRB Decisions That Are Subject to Change

D.R. Horton/ Murphy Oil Arbitration Agreements and Class Action WaiversTo avoid litigation costs, many employers have adopted arbitration agreements noting that any employment dispute is to be heard by an arbitrator, not a court. In addition, the employees agree that their claims will be heard on an individual basis and not in a class or collective action.

D.R. Horton/Murphy Oil cont.NLRB decided class action waivers violate Section 7 rights despite Courts of Appeal upholding the validity of such waivers. Convergys v. NLRBThe Fifth Circuit held that class action waivers are valid.Issue is on appeal to U.S. Supreme Court. A conservative Court is also expected to reject impending cases that seek to do away with mandatory arbitration clauses that prohibit workers and consumers from participating in class-action lawsuits.

Purple Communications Permits employee use of employer-owned email systems for purposes of organizing and participating in concerted activity.Protects Section 7 rights. General counsel applying this decision to all communication systems and devices.Forecast: Trump will follow a “discrimination” standard. No affirmative requirement for employer to provide employees with e-mail system. Can ban all non-work use if “special circumstances make the ban necessary to maintain production or discipline.” – difficult to prove.Employer may apply uniform and consistently enforced controls over its e-mail system if necessary to maintain production and discipline. – difficult to prove

American Baptist Homes of the West/ Piedmont Gardens Restricts an employer’s ability to permanently replace striking workers. Reduce employer’s ability to maintain its operations during an economic strike.Must demonstrate that replacements were for legitimate business reasons and not as economic sanctions.

American Baptist Homes of the West/Piedmont Gardens (cont.)This decision undercuts one of the Supreme Court’s longest established Board precedents  Which authorizes employers to hire replacement workers “at will” and “with impunity” in economic strikes without regard to motivation. Forecast: Trump’s Board likely will reverse.

Miller & Anderson Holding: Permits mixed unit of solely employed employees and jointly employed employees absent consent of all employers. Apply “community of interest” factors. Consequences: Browning-Ferris makes it more likely that an entity will be deemed a “joint employer” with a temporary labor provider An employer that “jointly employs” temp workers will be forced to recognize and bargain with both its own regularly employees and the temp workers, even though the latter workers’ terms and conditions of employment may be controlled entirely by a different employer.Forecast: Trump Board will likely reverse.

Banner HealthNLRB ruled that asking employees who are involved in investigations not to discuss them with co-workers ran afoul of the NLRA.The ruling does permit employers to ask workers to keep investigations under wraps in some circumstances, but it held that the employer must justify the confidentiality by showing it has a legitimate business need for it that outweighs the employees’ Section 7 rights.In March 2017, the D.C. Circuit denied enforcement of part of the decision, but the NLRB’s position has not been rejected. Forecast: Trump Board likely to reverse.

Employee Handbooks Rules & Policies

Employee HandbooksEmployee HandbooksCurrent NLRB has been highly regulatory of employee handbooksGenerally affects non-union workplacesCurrent legal standard:Any rule that could possibly be construed as interfering with NLRA rights is a ULP – Lutheran Heritage case.Rendered dozens of common handbook rules unlawfulLikely new standard:Hopefully, a return to sanityTo be unlawful, the rule must expressly interfere with NLRA rights Examples: blanket prohibition of all buttons; prohibition of “walking out” on job

Employee HandbooksHandbook rules likely to be deemed lawful by Trump BoardBroad confidentiality rulesBe “respectful” to co-workers, supervisors, customers & vendorsProhibition on “rude” or “unprofessional” behaviorDo not harm Company’s reputationRules against “offensive” behaviorRules against “inappropriate” behavior

Employee HandbooksCircuit Courts not supportive of all of these efforts.July 2017: T-Mobile USA, Inc. v. NLRB (5th Circuit): T-Mobile’s “positive work environment” policy was reasonable and valid; employees’ Section 7 rights were not violated.

Social Media PoliciesRules likely to be deemed lawful by Trump BoardDo not impugn the Company’s reputation onlineAct professionally when posting onlineIn personal posts about the Company, make it clear that you are not a representative of the CompanyDo not post pictures of co-workers or supervisors without their consentRespect company confidentiality

Social Media MisconductBoard protected some egregious statements:Telling supervisors to “F off” onlineInsulting supervisors’ familiesPrediction:Blatant corporate disparagement not connected to a strike will be grounds for disciplineBoard will allow an employer to discipline based on the business interest of its public image over social media

Protected Concerted ActivityFresh and Easy (2014)Board held that an employee who asked co-workers to assist in her sex harassment claim was engaged in PCACo-workers didn’t want to help, or help herNo issue of unionizationNo issue of bargaining, or “group grievance”Forecast: Expect reversal of this broad definition of PCAWill need to relate unionization, bargaining, or a “group grievance” of working conditions

UPDATE Department of Labor

OVERVIEW Persuader Rule Overtime Regulations Misclassification of Workers Joint Employers Interpretation Under FLSA OSHA pull back

Narrowed the scope of “advice” exemption resulting in significant reporting disclosure requirementsPersuader Rule

Persuader Rule What does it do? Alters federal disclosure rules in order to make it more difficult for employers to access legal counsel and legally communicate with employees about pros and cons of a particular union or unionization. Under the Rule, virtually all communications between employers and labor lawyers or consultants is subject to the disclosure requirements. Difficult to train supervisors on communicating about labor issues with employees. Is it in effect? 2016  Federal Court in TX permanently enjoined the final persuader rule. 2017  5th Circuit: Hearing on permanent injunction held in abeyance.2017  DOL began rulemaking process to rescind the rule. CGWG submitted comments on behalf of Arkansas State Chamber, AHA, ABC and other Arkansas Businesses to support rescission.

Persuader Rule (cont.)Pending action in Arkansas – on hold given change in Administration.Temporary Restraining Order denied in Minnesota. Hearing on permanent injunction held in abeyance pending position under the new Secretary of Labor.

Proposed Overtime Regulations – Expand OT EligibilityRolled out by DOL Announced: May 18, 2016Effective DateDecember 1, 2016Would significantly increase minimum salary levelFrom $454 per week ($23,660)To $913 per week ($47,476)4.2 million workers impactedCost to employers: $12,000,000,000

Overtime regulations DOL dropped its defense of the Obama Overtime Rule and seeks to revisit the Rule through new rulemaking.

Secretary Acosta Press ReleaseWASHINGTON – U.S. Secretary of Labor Alexander Acosta today announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.  Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

Misclassification of Workers Wage and Hour Administrator issued interpretation on how workers are to be classified between employees and independent contractors for purposes of coverage under the FLSA. OLD TEST  Level of Control over actionNEW TEST  Multi-factor “economic realities” Under the Trump Administration: Acosta, the new Secretary of Labor, rescinded this policy, returning to the old test.He also reintroduced opinion letters, which let businesses ask the DOL how to abide by the FLSA.

UPDATE Occupational Safety and Health Administration

usw requested osha to overturn longstanding regs on whether outside third parties could accompany an osha inspector during a walk around inspectionLetter of Interpretation Granting Union Representatives Walk Around Rights Rescinded under Trump Administration

Letter of Interpretation Granting Union Representatives Walk Around Rights Generally, only employees of the company can accompany OSHA inspectors during inspection.The Letter of Interpretation grants union representatives the right to enter non-union workplaces when requested by an employee to act on their behalf as a “walk-around representative” during OSHA inspection. Reversed by April 2017 memo.Effect: Union reps cannot accompany OSHA inspectors.

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DisclaimerThis CGWG presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other CGWG presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.J. E. Jess SweereCross, Gunter, Witherspoon & Galchus, P.C.Little Rock/NW Arkansasjsweere@cgwg.comwww.cgwg.com(501) 371-9999(501) 425-9118 - cell© 2017 Cross, Gunter, Witherspoon & Galchus, P.C.All Rights Reserved.