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SHOULD EMPLOYERS KEEP EMAIL ADDRESSES OF EMPLOYEES, OR NOT?

Some employers are asking whether they should collect employee email addresses.  The main concern is that under the NLRB "quickie election" rule, after a union files an election petition with the NLRB, the union is entitled to the email addresses of voting employees retained by the employer.  Thus, by collecting employee email addresses, the employer may be doing the union’s "homework" for it, allowing the union to freely communicate with employees.

On the other hand, employee email addresses are very helpful to employers.  Employers can use such emails addresses to communicate benefit information to employees, to allow employees to exercise benefit options on-line, to do exit interviews, and to handle a host of other matters.

Let us first review some of the various considerations.  In December, the Republican-majority members of the NLRB asked certain questions in consideration of a revision of the "quickie election ruling" itself.  Such a change in regulations takes a long time, however, probably a couple of years and possibly longer.  The current regulations require the employer to provide such email addresses after the filing of the union election petition if the employer has the email addresses.

While the current Administration can make certain changes administratively in the quickie election rule, it cannot rewrite the rule itself and so the quickie election provision on email addresses is likely to continue until the rule itself is modified or revoked. 

Thus, there are many corporate advantages to requiring employee email addresses, with the main disadvantage appearing to be the quickie election rule.  Another disadvantage is that the government may use employee email addresses in an effort to enforce other laws, such as discrimination laws.  But can the employer itself utilize to its advantage the email addresses to counter union organizational attempts?  This writer thinks it can.

First, often the most important part of a union organizing campaign is the pre-election petition campaign of the union and the informational counter-campaign conducted by the employer.  If the employer has employee email addresses, it can communicate its informational campaign to employees, and their families, by email.  The union will not have access to such email addresses until two (2) business days after an election agreement is finalized by the NLRB, company and union.  Thus, having access to employee email addresses can benefit the employer during the lengthy organizational process, which occurs prior to the election petition being filed.

Thus, the question is a close one.  Employers should note that if the "quickie election" rules are scaled back, email communications can remain a good vehicle for HR use both ways.

A similar question is raised with respect to the "quickie election" rules as it relates to the submission of cell phone numbers, which would also be conveyed to unions if you have them available in a list.  However, the potential value of such numbers to the employer (unless necessary for operational purposes) is much less than emails.  Furthermore, the use of cell phones for union campaign matters is more intrusive and, in some cases, legally problematic for employers.  As such, the collection of these numbers is not encouraged unless it is already done for HR or operational purposes.

REASONS FOR THE DECLINE IN UNION STRIKES

Over the last 25 years, the number of U.S. workers who are members of unions has dropped from about 16.7 million to about 14.8 million, even though the total workforce has grown significantly over that period of time.  According to Bloomberg Law Labor Data, however, the number of strikes has dropped six times faster, from 793 in 1990 to 102 in 2015.  Strikes over the years have historically been considered the only real power the unions have.  So why are strikes withering away?  Undoubtedly, opinions differ on this subject.  Let’s consider this writer’s opinions. 

The beginning point is probably to look at the financial implications of a strike, and the attitudes of both unions and management in negotiating collective bargaining agreements (CBA).  In general, strikes are so expensive that few unions can afford them.  The expense comes from first, the elimination of union dues during the period of the strike.  Second, at a minimum, unions have to engage staff members, lawyers, and others to manage the strike.  Also, many unions provide at least minimal financial assistance to the strikers during the course of the strike.  All these things add up to an enormous expense.  In a recent strike involving less than 2,000 electrical workers in New York, the strike cost the union over $4 million in strike funds alone.  A business manager of the local on strike candidly stated that the union was going to try to help the people but he didn’t know if they were ever going to go back given the position of the company. 

Another risk for unions, besides financial, is decertification.  Generally, union members crossing the picket line are harassed by the union, and the new hires have no interest in joining the union, thus creating a "perfect storm" for union decertification.  Unions know they have this risk when they strike.

Employers, on the other hand, often have greater ability to withstand strikes today.  They have learned how to build up inventory, to shift work to other plants, to use labor services to bring in replacements, and to otherwise survive a strike.  It is much more difficult for unions to boycott company products today than it used to be, another factor.

Of course, strikes cost companies tons of money as well.  Further, companies know that when strikes end, sometimes it takes a long period of time to build back the comradery in the workplace that promotes efficiency.  Companies, too, want to avoid strikes.

But it is probably the attitudes of the parties that explains much of the decline in strikes, rather than finances.  Unions are not organizing that many new employers today, so most collective bargaining relationships are long-standing.  The companies have become accustomed to dealing with unions, and many companies candidly admit they are not opposed to the union.  Some companies may feel they get "breaks" with government enforcement agencies or public opinion by having a union.  Some may feel they can tell workers to "blame the union" over the problems, not the company.  Others feel that the union actually helps the company solve problems.

But it is the attitude of union negotiators that has particularly changed.  In the "old days," labor negotiations were extremely adversarial, with "pounding the table" and the like.  Today, negotiations are much more accommodating.  Both union training and business schools are teaching cooperation in labor-management relations.  Unions skillfully phrase their arguments on how their proposals can actually benefit the company, making the company much more supportive of the union’s position.  In the "old days," unions pushed to build a common "labor standard" in entire industries, or entire areas, so that the cost of labor would not be a part of industry competition.  Unions have largely abandoned this philosophy, and are willing to look more at local conditions in resolving negotiating issues.  Both parties increasingly seem to have common interests in hiring and retaining a qualified workforce, thus lessening the controversy over wage proposals.  To some extent, the same common interest applies to benefits.  Further, unions at one time insisted on employer participation in "union benefit plans," but that push by unions has also declined.  Unions are increasingly realizing and saying that the success of the union depends on the success of the company as well. 

Nevertheless, employers as a whole that are union free generally wish to stay that way.  There is an administrative cost that goes with having a union, including dealing with union stewards, negotiating labor agreements, and the like.  Unions’ preference for seniority-based systems and equality in pay rates works against management philosophy in some cases.  Some believe that the increasing significance of healthcare costs may create controversies in union-management relations.  Whether union or non-union companies are more efficient is a matter of continuing debate.

WILL ICE RAIDS RETURN AND IN WHAT FORM?

Immigration and Customs Enforcement (ICE) acting Director Thomas Homan said last October that he would quadruple ICE’s worksite enforcement efforts, but did not give any details.  Let us review a little history of ICE "raids" as they have been conducted in the past, and what it means for employers this year, particularly beginning with the new fiscal year on October 1.

During the early part of the administration of President George W. Bush, there was not much attention given to ICE enforcement actions as the focus was generally limited to unauthorized individuals that might be posing a national security threat.  The strategy changed dramatically in the latter part of the Bush Administration, particularly between 2006 to 2008.  While ICE only arrested 527 individuals in FY 2005, that number jumped to 6,287 in FY 2008.  Further, ICE performed highly-publicized "raids" in which large numbers of ICE agents would surround a facility (and occasionally surrounding residential areas) and investigate all workers therein.  Some work sites lost 80% of their work forces in less than a week, and ICE followed up by attempting to make criminal cases against company officials that had knowledge of the illegal status of the workers.  Such actions definitely got the attention of the employer community.  However, because of the cost of conducting such massive raids, and the planning and organization necessary to carry them out, such raids did not occur often.  ICE attempted to make up for much of its costs for such raids by seeking massive fines against the work sites that were raided.  While many attempts were made to criminally prosecute employer officials, the illegal workers themselves were generally released and simply went to work at other establishments.

ICE enforcement strategy changed significantly during the Obama Administration.  There were no high-profile "raids" conducted in the manner conducted during the Bush Administration, but instead a new concept was emphasized, popularly known as "silent raids."  These type raids did not result in large numbers of ICE agents surrounding a facility and then questioning all therein, but instead involved a significant increase of desk audits.  Such I-9 audits went from 1,444 in FY 2009 to 3,127 in FY 2013.  Since desk audits were much cheaper to conduct than Bush-era raids, more employers were investigated which created a different type of deterrent to law violations.  The "silent" raids, however, resulted in very few criminal prosecutions or deportations of illegal workers.  The prime enforcement mechanisms were civil fines for I-9 paperwork violations and requirements on employers to terminate the unauthorized workers. 

There is a great deal of speculation on what ICE’s enforcement emphasis will be in the future, particularly in light of acting Director Homan’s comments.  In January of this year, the media reported that ICE "raided" 7-Eleven franchises throughout the country, approximately 100 different facilities.  While the media reports suggested that the Bush-era "raids" were being resumed, actually the enforcement was more like a massive number of "silent raids" conducted against a single franchise operation.  Only 21 undocumented workers were arrested as a result of these raids. 

Now let us speculate what the enforcement strategies are going to be under acting Director Homan, particularly beginning around the first of July when Homan indicated new strategies will probably be implemented.  This writer is skeptical that budget restraints allow ICE to conduct the massive "raids" as conducted during the last 2-3 years of the Bush Administration, due to the enormous concentration of resources that would only be directed at a very few employers, and the enormous expense of conducting such operations.   For example, in one Bush-era raid of which this writer represented the employer, almost all ICE agents across the U.S. were utilized to conduct a single raid.

This writer submits it is more likely that expanded "silent" raids such as those utilized at 7-Eleven will be implemented, as they are much less expensive but at the same time create a great deal of publicity that ICE desires as a deterrent to immigration violations.  There may be a few cases where massive fines are assessed, with the best example being Asplundh Tree Expert, which was recently hit with a record-setting $95 million settlement for allegedly knowingly hiring illegal workers.  Another change is that rather than merely requiring the employer to terminate the unauthorized workers, a practice followed during both the Bush and Obama Administrations, the Trump Administration is more likely to have the unauthorized workers deported. 

Let us now consider the other half of immigration enforcement, the anti-discrimination provisions protecting immigrants against disparate treatment in hiring and employment.  Many employers are caught by surprise when they find that they cannot ask immigrants for specific or different documents, or focus their internal I-9 audits on such immigrants, as the immigration laws protect such persons from disparate treatment.  There has been a great deal of turnover at IER (Immigrant and Employee Rights), and the current leadership therein seems to be somewhat in limbo.  Some of the cases in process have basically been suspended, and this writer believes that the IER is awaiting new leadership. 


Wimberly, Lawson, Steckel, Schneider & Stine

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