Union Bailout Update

The DOL under new head Alexander Acosta has withdrawn two memos (or administrative interpretations) originally posted by the Wage & Hour division related to independent contractor and joint employer status.  Although such action does not change any law, it does signal the administration’s possible intention to backtrack up the slippery slope of joint employer issues. The administration also revoked a 2013 Letter of Interpretation which allowed non-employee union members to attend OSHA inspections, even when no employees at the targeted company were represented by a union. The DOL has also signaled that it intends to revoke the Persuader Rule, publishing a Notice of Proposed Rulemaking that will take public comment on rescinding the rule altogether. Acosta apparently plans to bring a more reasoned approach to the Overtime Rule. When the Obama administration attempted to double the threshold from $23,660 to $47,476, a November, 2016 court decision brought implementation to a halt.  Acosta’s comments at his confirmation hearing suggest he may review the threshold in light of a cost-of-living increase in the neighborhood of $33,000. The OSHA record-keeping rule is still winding a tortuous path through the courts. The rule went into effect Jan. 1, 2017 but the July 1st compliance deadline has been indefinitely postponed by court action. While industry groups filed suit to block the rule, the unions attempted to line up on the side of the government to defend it when the Trump administration signaled a desire to weaken the rule. In preventing the unions from joining the suit, labor department attorneys stated that the “unions have failed to identify a concrete manner in which the Government cannot adequately represent that shared interest.” As originally conceived, the rule calls for employers to electronically file injury and illness logs that OSHA requires workplaces to keep, which would then be posted to the agency’s public website. On June 1, the U.S. Court of Appeals for the Second Circuit upheld the Whole Foods Market, Inc., 363 NLRB No. 87 (2013) ruling that employers could not prohibit employees from making surreptitious audio or video recordings of workplace activities. The 6th Circuit became the 3rd circuit to uphold a prohibition on class action waivers in employment arbitration agreements. The Supreme Court has agreed to hear the issue, and the Trump administration has signaled that it stands on the side of employers. In the court filing, acting U.S. Solicitor General Jeffrey Wall said the Supreme Court should find that class action waivers are legal and enforceable under federal law. Back again to the 2nd Circuit, vulgar and profane comments on social media were determined to be protected concerted activity. The court included two conditions. First, the rant included issues or comments connected to workplace conditions (even if aimed at an individual), and second, there was an existing perceived tolerance for profanity in the workplace by the employer. The D.C. appeals court upheld the NLRB’s recent expansion of remedial powers, allowing the imposition of job-search costs to employers in the case of wrongful discharge findings. The Supreme Court denied Macy’s petition to challenge the 5th U.S. Circuit Court of Appeals’ 2016 decision allowing micro unit organizing at a Massachusetts store. For now at least, micro unit organizing remains a reality. The NLRB recently moved the compliance bar higher yet again in relation to the submission of a list of all eligible employees during an election. In RHCG Safety Corp., the board ruled that “available” includes phone numbers not included in any company database but held by supervisors in their cell phones or via other means. If you are an Oregon employer, pay attention to this recently passed Pay Equity Bill, as the ramifications are substantial. A long list of “protected classes” has been created, amidst other rules related to salary history and compensation amount. New York passed a similar though less intrusive bill making it illegal for employers to inquire about a prospective job applicant’s salary history or to rely on that history during the hiring process. Oregon and New York tend to be bellwether states, so keep an eye on this trend. State legislators in Oregon also responded to the recent decision to allow local municipalities to pass right-to-work legislation, by passing a bill requiring union membership as a condition of employment at unionized companies. As expected, the Kentucky State AFL-CIO and a Teamsters local filed suit in Kentucky challenging that state’s new right-to-work law. Swinging the pendulum in the other direction, Missouri Governor Eric Greiten signed a bill banning local governments from giving preferential treatment to union contractors on public construction projects. New York City Mayor Bill de Blasio’s efforts to force unionization of city car washes received a slap in the face when a judge ruled his effort illegal. The city had attempted to require, as a part of a licensing process, that carwash owners buy a special bond within a two-tiered system. For unionized employers the bond was $30,000, but for union-free, $150,000. As Phil’s Insight mentioned, congress is working on rescinding the ambush elections rule. A recently announced Senate bill seems to combine elements of two House bills, all aimed at pushing back the Obama administration’s union-friendly actions. Elements of the Senate bill include:

• Guarantee workers have time to gather all the facts to make a fully informed decision in a union election. No union election will be held in less than 35 days.
• Ensure employers are able to participate in a fair union election process. The bill provides employers at least 14 days to prepare their case to present before a NLRB election officer and protects their right to raise additional concerns throughout the pre-election hearing.
• Reassert the board’s responsibility to address critical issues before a union is allowed to represent workers. The board must determine the appropriate group of employees to include in the union before the union is certified, as well as address any questions of voter eligibility.
• Empower workers to control the disclosure of their personal information. Employers would have at least seven days to provide a list of employee names and one additional piece of contact information chosen by each individual employee.

North of the border, the Ontario Labor Board has announced changes to that province’s labor and employment laws. Among the litany of changes, the proposed legislation would make the following changes to the union certification process:

• Eliminating certain conditions for remedial union certification, allowing unions to more easily get certified when an employer engages in misconduct that contravenes the LRA
• Making access to first contract arbitration easier, and also adding an intensive mediation component to the process.
• Requiring the Ontario Labour Relations Board (OLRB) to address first contract mediation-arbitration applications before dealing with displacement and decertification applications
• Allow unions to access employee lists and certain contact information,  provided the union can demonstrate that it has already achieved the support of 20 per cent of employees involved
• Expressly empower the OLRB to conduct votes outside the workplace, including electronically and by telephone
• Empower the OLRB to authorize Labour Relations Officers to give directions relating to the voting process and voting arrangements in order to help assure the neutrality of the voting process