Dotting the i’s and crossing the t’s during organizing campaigns remains critical, as the recent URS Federal Services, Inc. case demonstrates. In this case, the employees overwhelming voted against unionization (91-54). However, although the union had been provided the Excelsior list by the required deadline, it called for an overturning of the election results because the union received the list from the NLRB regional director instead of directly from the employer, as the rule specifies, as amended in December 2014. The NLRB reversed the regional director’s ruling and nullified the election.
The issue of whether or not employer arbitration policies that prohibit employees from filing class or collective actions are a violation of the NLRA is on it’s way to the Supreme Court. The NLRB contends such policies inhibit concerted protected activity and are thus a violation of the law. The circuit courts are split on the issue, with the Ninth and Seventh Circuits holding them unlawful, while the Second, Fifth and Eighth find them acceptable.
State and municipal governments are ratcheting up the attack on employers as well. In California, two local governments have voted to give unions monopoly control of construction contracts as a condition of getting a state grant. In New York, Mayor de Blasio signed into law the Freelance Isn’t Free Act, which will go into effect in May of this year. If you deal with freelance contractors in New York, you should check into the details of the new law. Connecticut became the most recent state to implement legislation prohibiting employers from looking into an applicant’s criminal history at the onset of the employment process. There are exceptions, and there is an opportunity later in the hiring process to check criminal backgrounds, but a review of hiring procedures (in that state) may be in order.
Look for a “Fight-for-15” type of movement by state legislatures to attempt an end-around the injunction of Obama’s overtime rule. Lawmakers in Rhode Island, Connecticut, Maryland, Wisconsin and Michigan are already talking of introducing bills, with those in many other states hinting they may follow suite.