A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.
With the onslaught of the pandemic in 2020, many employers were busy dealing with staffing issues, safety concerns, and COVID-19–related legislation. There may have been little to no time to address handbook policies. With many changes on the horizon in 2021 under President Biden’s administration and the adaptations in the working environment due to COVID-19, it may be a good time for employers to turn to the company handbook to ensure it is up to date. This article will highlight five areas to which employers may want to give special attention in 2021.
Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.
Part one of this two-part series covered changes to U.S. labor law policies that employers can expect to see with the new administration. Part two is a brief summary of the most prevalent issues in current labor law and their likely disposition under a new Biden administration and National Labor Relations Board (NLRB).
The election of Joseph R. Biden Jr. to the White House, a long-time vocal supporter of organized labor, coupled with control of both houses of the U.S. Congress by the traditionally labor-friendly Democratic Party, is the prelude to changes on the labor law front, a number of which are potentially significant. (Note that following Democratic victories in both Georgia runoff races, the U.S. Senate is technically split 50-50. However, in case of a tie vote in the Senate, Vice President Kamala Harris is constitutionally empowered to cast a tie-breaking vote. Thus, Democrats have control of the upper chamber, albeit by a very slim margin.) The two major engines of this anticipated change will be the U.S. Congress, most especially the U.S. Senate, and the National Labor Relations Board (NLRB). Part one of this two-part series regarding labor law policy and the new administration discusses these anticipated labor law changes.
At noon, eastern standard time, on January 20, 2021, Joseph R. Biden Jr. became the 46th president of the United States, giving Democrats control of the executive branch, and, albeit by the thinnest of margins (with Vice President Kamala D. Harris presiding as president of the U.S. Senate), the legislative branch of the U.S. government for the first time since 2011. While that transition will, no doubt, impact a great many national and global issues, the focus of this article is the potential impact that this dynamic will have on U.S. labor law and policy.
President Joe Biden began his election campaign in a union hall in Pittsburgh and pledged on the eve of the election to be “the most pro-union president you’ve even seen.” As immediate evidence of his intent to make good on that pledge, it is being reported that one of his first acts as president (the email taking this action was apparently sent at 12:23 p.m. on January 20, 2021) was to ask for the resignation of National Labor Relations Board General Counsel Peter Robb. The president apparently gave Robb until 5 p.m. on January 20, 2021, to resign or be fired.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Fall 2020 issue of the Practical NLRB Advisor. This issue offers insight into the future of labor policy in the wake of a politically polarized presidential election year and a sharply divided electorate. Even though the 2020 election is over, we can expect to see continued battles over traditionally pro-labor segments of the workforce, controversial legislation that is likely to be advanced in the near term, and recent National Labor Relations Board (NLRB) activity.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the summer 2020 issue of the Practical NLRB Advisor. This issue offers insight into the new, and, oftentimes unanticipated, labor/management issues resulting from the coronavirus pandemic. While COVID-19 brought an abrupt halt to many aspects of daily life, it has had quite the opposite effect on labor relations: novel bargaining obligations arose, and new bargaining mechanics became necessary. These unexpected issues, coupled with an increase in employee concerted activity in response to the pandemic, have all tested the capacity of the parties and the law to adapt to unprecedented circumstances.
In a decision that may be useful to employers deciding whether workers should be classified as independent contractors or employees, the National Labor Relations Board (NLRB) found that an exotic dancer at the Centerfold Club in Columbus, Ohio, was an employee rather than an independent contractor.
On July 7, 2020, the Government of Alberta proposed important changes for workplaces through Bill 32, the Restoring Balance in Alberta’s Workplaces Act, 2020 (Bill 32). The stated purpose of Bill 32 is to increase investment in Alberta’s workforce and to reduce the administrative burden for employers. On July 29, 2020, Bill 32 received Royal Assent.
On July 21, 2020, the National Labor Relations Board issued its decision in General Motors LLC, 369 NLRB No. 127 (2020), overruling decades of precedent granting employees considerable freedom to engage in abusive or offensive conduct in connection with union or other protected concerted activity.
The National Labor Relations Board (NLRB) recently overturned a 2016 decision holding that an employer violates Sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA) by failing to provide notice and an opportunity to bargain to a newly elected union prior to disciplining unit members.
On June 10, 2020, the National Labor Relations Board (NLRB) renounced jurisdiction over faculty employees at most religious educational institutions. The Bethany College case overruled the NLRB’s 2014 Pacific Lutheran University decision, through which many NLRB Regional Directors had ordered union elections at religiously-affiliated schools (such as a Catholic university in Seattle) In Bethany College, the NLRB adopted a new jurisdictional standard, adopted from a 2002 opinion from the U.S. Court of Appeals for the District of Columbia Circuit, University of Great Falls v. NLRB, under which it will not assert jurisdiction over an institution that: (a) holds itself out to the public as a religious institution, (b) is nonprofit, and (c) is religiously affiliated.
In an abbreviated order issued on May 30, 2020, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia ruled that the National Labor Relations Board (NLRB) improperly implemented portions of the final rules on representation elections initially scheduled to take effect on April 16, 2020. The NLRB delayed implementation to May 31, 2020, due to the COVID-19 pandemic.
The current National Labor Relations Board (NLRB) continues to provide relief for employers whose workplace rules and policies were under attack from the Board during the Obama administration. Following the line of authority started with its decision in The Boeing Company, 365 NLRB No. 154 (2017), the NLRB continues to review handbook, code of conduct, and other employer rules with a more relaxed, common-sense approach.
The National Labor Relations Board (NLRB) issued a supplemental decision on May 20, 2020, finding lawful a policy prohibiting employees from possessing or using their cell phones on the manufacturing floor or at their workstations.
Parts of the country have begun the process of returning to work, in places where COVID-19 infection rates have flattened or shown a decline. But the risk of becoming infected with COVID-19 remains, and some employers may be faced with parts of their workforces refusing to return to work or to perform certain assignments, citing the health risk. What are employers’ options with respect to such employees? There are both legal and practical considerations.
On May 20, 2020, National Labor Relations Board (NLRB) General Counsel Peter Robb issued new guidance in Memorandum G.C. 20-06 regarding the NLRB’s remedial notice posting requirements.
Employees—particularly healthcare employees—are increasingly refusing to work because of safety concerns and the need for accommodations related to COVID-19. In certain circumstances, these refusals may trigger protections afforded by the Occupational Safety and Health (OSH) Act, the Americans with Disabilities Act (ADA), and the National Labor Relations Act (NLRA), among others.
After more than two years of deliberation, the United States-Mexico-Canada Agreement [T-MAC in Mexico] will enter into force on July 1, 2020. The three-nation agreement includes a key element employers may want to take note of—employers and unions will be able to negotiate disputes through alternative methods of dispute resolution.
On April 1, 2020, we explained that the National Labor Relations Board (NLRB) would resume processing representation cases on April 6, 2020. Since then, NLRB regional offices have been scheduling and conducting telephonic pre-election hearings and generally have been denying videoconference requests.
Over the course of the past few weeks, we have all asked and attempted to answer many questions about workplace law and the COVID-19 response, including questions arising under the new Coronavirus Aid, Relief, and Economic Security (CARES) Act. In the labor space, one question that continues to come up goes something like this: “We have heard that taking advantage of programs under the CARES Act may require an employer to remain neutral during any union organizing effort. Is that true and, if yes, what does it mean?”
Virginia has long billed itself as a business-friendly state with low taxes and commonsense employment regulations. But recent changes—largely adopted with little fanfare or scrutiny—are poised to revolutionize the labor and employment landscape in Virginia. These changes—compounded by the likely recession resulting from the COVID-19 pandemic—will present tremendous challenges for Virginia employers.
On March 31, 2020, the National Labor Relations Board (NLRB) announced that it had finalized a series of amendments to its blocking-charge policy, voluntary recognition bar, and rules governing Section 9(a) recognition in the construction industry.
Every day media outlets are reporting on people’s concerns about how the COVID-19 pandemic is being handled: citizens are complaining about the government; politicians are complaining about each other; and workers are complaining about their employers. In addition, stories about protests, walkouts, or other employee-led work disruptions have become increasingly more common. Whether constructively sincere or mere venting, in the context of labor relations, it is imperative employers know and understand the legal parameters that govern their responses to such employee actions.
On April 1, 2020, the National Labor Relations Board announced it will not extend its temporary suspension of Board-conducted elections past April 3, 2020. Instead, it will resume conducting elections beginning on Monday, April 6, 2020.
On August 9, 2019, we explained that the National Labor Relations Board (NLRB) would be publishing a notice of proposed rulemaking (NPRM) regarding certain proposed amendments to the National Labor Relations Board’s (NLRB) rules on “blocking charges,” a bar on voluntary recognitions, and Section 9(a) recognition in the construction industry. On March 31, 2020, the Board announced that it has finalized the proposed amendments, which it believes “better protect employees’ statutory right of free choice on questions concerning representation.” The final rules will be published in the Federal Register on April 1, 2020, and should take effect after May 31, 2020.
As employers everywhere grapple with the COVID-19 crisis and its impact upon their employees and operations, questions have arisen regarding union contracts that expire on or about March 31, 2020. Although every labor contract and bargaining relationship is unique, established federal labor law principles can be applied to guide employers during this difficult time.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the winter 2020 issue of the Practical NLRB Advisor. This special double issue offers readers a thorough year in review of the National Labor Relations Board’s (NLRB) activity in 2019.