The Protecting the Right to Organize Act (H.R. 2474) on February 6, 2020 passed the U.S. House of Representatives by a vote of 224-194.  Five Republicans voted for the bill and seven Democrats opposed it.  It has been called the most pro-union legislation since the Wagner Act was passed in 1935.   It is so pro-union, that many business interests have taken the legislation lightly, apparently feeling it could never pass.  It has passed, at least in the House.  There is a similar bill pending in the Senate (S. 1306), but Senator McConnell is unlikely to give it a floor vote. 

The efforts of the Equal Employment Opportunity Commission (EEOC) to collect information on race and gender pay data are finally over.  The Trump Administration had blocked the collection of the race and gender pay data in 2017, but a federal district court judge in the District of Columbia ordered the Obama-era pay reporting requirement to continue.  The judge's order is still being appealed, but in the meantime the judge has finally deemed the collection complete, with about 89% of all eligible employers having turned over the pay data. 

No announcement has been made as to how the pay data already collected will be used, and there are no current plans to do race and gender pay data collection in this manner in the future.  However, the matter is still being considered from a regulatory standpoint and conditions could change, of course, with a different administration. 

It seems to be a trend not only in the U.S., but around the world, for there to be a flurry of protests and walk-outs.  Strike activity in the U.S., for example, is at the highest level in several years, after many years of extremely low levels of such activities.  But now we seem to have a similar trend in often spontaneous walk-outs in even non-union plants in the U.S.

First, a brief review of the legal rules.  A concerted walk-out, even in a non-union facility, is a protected, concerted activity.  Therefore, employees may not be terminated or even disciplined for engaging in such activities.  There are three exceptions, however, in special circumstances. 

For employers concerned about union organizing campaigns, the so-called "quickie" union election rules promulgated in 2014 were among the most dangerous things ever to hit labor law - only surpassed by the "card-check" proposals.  Unions try to keep their campaigns secret for as long as possible, so they can develop a solid majority for unionization without the employer having an opportunity to respond.  Unions therefore time their filing of election petitions so as to be filed when there is maximum union strength.  Unions know that in their counter-union campaigns, management will explain the disadvantages of unionization, and therefore unions hope to hold onto their majority in the time period between the filing of the election petition and the holding of the secret ballot election.  The longer the campaign period for the election, the more likely it is that the once-majority support for the union will dissipate.

In the first update to these regulations in 50 years, the Department of Labor on December 18, 2019 published a Final Rule clarifying when payments - such as year-end bonuses - must be included in an employee's "regular rate" (i.e., pay divided by hours worked) for purposes of calculating overtime.  The new rules take effect January 15, 2020.

The joint employment issue is high on the agenda of the main employment agencies, including the NLRB, the Department of Labor (DOL) and the EEOC.  While the joint employment issue has been litigated in a variety of forums, perhaps the most publicized forum was the NLRB case involving McDonald's, in which the Obama-era NLRB General Counsel contended that McDonald's and its franchisees were joint employers. 

The litigation continued for almost three years, and although a settlement agreement was reached, an NLRB administrative law judge denied motions to approve the settlement agreements.  On special appeal to the Board, the Board remanded the case to the judge with the instructions to approve the settlement agreements.  Applying various "reasonableness" factors, the majority found, contrary to the judge, that the settlement agreements are reasonable, they provide a full remedy to all affected employees, and accepting the settlement agreements would serve the policies of the Labor Act.  Significantly, the settlements do not impose joint liability on McDonald's, as the liabilities are basically limited to the franchisees.  Thus, under the settlement, McDonald's avoids any joint employer finding.

Another December ruling dealt with workplace investigations, and the issue whether an employer can have work rules requiring confidentiality during the course of such investigations.  Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144.  The Obama-era NLRB issued a decision requiring employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.  Employers often desire to have such confidentiality to preserve the integrity and privacy of such investigations, particularly involving sensitive harassment issues.  Indeed, the Equal Employment Opportunity Commission (EEOC) encourages such confidentiality.  The EEOC and the NLRB had actually met without success over resolving the issue between privacy rights and workers' rights to discuss job-related issues. 

In the more recent ruling, the NLRB applied the test for facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017), and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.  Because the rule at issue did not limit confidentiality to the duration of the investigation, the Board remanded to determine whether the employer has one or more legitimate business justifications for requiring confidentiality even after an investigation is over and, if so, whether its justifications outweigh the effect on employees' exercise of their Section 7 rights.  Thus, rules that require employees to keep open workplace investigations private are deemed lawful if limited to the life of the investigation.    

In responding to the argument of the importance of workers being able to confer with coworkers, the NLRB said any adverse impact of gag orders on an open investigation is "comparatively slight."  The Board stated:  "The rules at issue do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline . . . .  Rather, it narrowly requires that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation."

The NLRB also ruled in December that an employer's statutory obligation to check-off union dues ends upon the expiration of the collective bargaining agreement containing the check-off provision.  Valley Hospital Medical Center, Inc., 368 NLRB No. 139.  The decision overturned an Obama-era ruling and returned the NLRB to the rule existing for over 50 years.

This ruling can be very helpful to employers during contract negotiations, as unions often drag out such negotiations attempting to secure a more favorable resolution to the union.  If employers have the right to cut off the collection of union dues, however, there will be much more pressure on the union to conclude negotiations so that dues collection can be restored.  The ruling contemplates that employers can unilaterally stop such dues deductions without bargaining to impasse with the union, once the contract has expired. 

The NLRB has re-established the right of an employer to restrict employee use of its email system if it does so on a non-discriminatory basis.  Caesars Entertainment, Inc., 368 NLRB No. 143.  This case reversed an Obama-era ruling that employees given access to the employer's email system had a presumptive right to use that system, on non-working time, for union or other concerted activities.  In the current ruling, the Board stated that employees do not have a statutory right to use the employer's email and other information-technology (IT) resources to engage in non-work-related communications.  The ruling indicates that employers may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications.  The Board in essence reinstated the rulings that existed prior to the Obama NLRB.

In doing so, the Board agree with business groups that employers have property and First Amendment rights to limit the use of their own email systems.  An exception will remain, however, for cases "where an employer's email system furnishes the only reasonable means for employees to communicate with one another."

One of the most debated, publicized, and contentious issues in employment law in recent years has been the NLRB "quickie election" rule, which only allowed 20 days or so between the filing of the union election petition and the election itself.  Unions felt that shortening the time period for an election would increase their chances of success, while employers complained that there was no time to inform employees of the other side of the story.  Employers cited to political elections and the lengthy time periods necessary for the voters to understand the issues. 

In December, the NLRB announced more than a dozen changes to the quickie election procedures.  The changes include clarifications to procedures prior to an election that better insure the opportunity for litigation and resolution of unit scope and voter eligibility issues.  The changes also permit parties additional time to comply with the various pre-election requirements instituted in 2014.  The Board issued the procedural changes as a final rule pursuant to its authority to change its own representation case procedures.  The final rule will be effective 120 days from the date of publication in the Federal Register, which is anticipated to be December 18, 2019.  The NLRB's regulatory agenda says the Agency may roll out other amendments to the quickie election procedures next year.

Significantly, some of the changes extend the election process.  All time periods will be calculated in business days, rather than calendar days under the quickie election rule.  The dissenting Democrat on the Board states that: "With this rule, my colleagues claim the dubious distinction of becoming the first Board in the Agency's 84-year history to intentionally codify substantial delay in the representation case process, to the detriment of the mission of our Agency." 

Because of the importance of the new rule, it will be more fully discussed in a subsequent newsletter.  In the meantime, please let us know if you have any questions or want a copy of the new rule.