Category: New York

April 18, 2022

Union Elections in New York Still Below Pre-COVID Levels

The National Labor Relations Board recently proclaimed an increase in union representation petitions nationwide. The NLRB noted that such filings are up 57% during the first half of the federal 2022 fiscal year (October 1-March 31) compared to the first half of FY 2021. A more in-depth look at the statistics, including a focus on filings in New York State, suggests that election petitions are only returning to pre-COVID levels. And a significant portion of the recent union elections involves a single employer. Whether there is a COVID-independent underlying trend of workers more eagerly pursuing unionization remains to be seen.

NLRB Press Release

The NLRB announced an increase in both representation petitions and unfair labor practice charges in an April 6, 2022 press release. The announcement aimed at justifying additional funding for the agency. For example, it asserts, “The increase in cases comes during a period of critical funding and staffing shortages for the Agency.” The press release notes that the NLRB’s Congressional appropriation has remained the same for nine years.

NLRB General Counsel Jennifer Abruzzo concluded the press release by arguing, “Right now, there is a surge in labor activity nationwide, with workers organizing and filing petitions for more union elections than they have in the last ten years.”

The press release states that 1,174 “union representation petitions were filed at the NLRB” between October 1, 2021, and March 31, 2022. This number reflects all “representation” petition filings during that time. These include both petitions from unrepresented employees seeking to unionize and various other categories of petitions regarding existing bargaining units. Most notably, it also includes decertification petitions from employees trying to vote out their existing representative to go union-free. These “RC” and “RD” petitions, as described below, account for over 90% of the representation cases referenced in the NLRB’s April 6th press release. (Other less common cases include unit clarification petitions seeking to adjust which positions are included in an existing bargaining unit and petitions filed by employers who believe their employees no longer support the union.)

Representation Petitions – RC

The following description from the NLRB website offers a concise explanation of the process by which employees can seek an election to determine whether they will become unionized:

Employees or a union may file a petition for a representation election (RC) after collecting signatures from at least 30% of workers in the potential bargaining unit. Petitions that are not withdrawn or dismissed result in an NLRB-conducted election. A majority of votes decides the outcome.

Nationwide RC Petitions

From 2012 to 2021, employees filed an average of 1,807 RC petitions each fiscal year across the United States. (Note: The NLRB only has jurisdiction over private employers. These data and the related law and procedures do not reflect unionization within the public (e.g., government) sector.)

During this time, petitions ranged from a high of 2,198 in FY 2015 down to 1,269 in FY 2021. It is probably a not mere coincidence that the number rose during the Obama administration and then fell under President Trump, as Republican-led labor boards are understandably seen as less favorable to employees and unions. However, the continued decline at the beginning of the Biden administration would be puzzling but for the COVID-19 pandemic, which began in March 2020–midway through FY 2020.

The following graph splits the data into six-month intervals beginning a year before COVID hit.

Here we see that the greatest decline in the filing of union election petitions occurred in the one-year period following the onset of COVID. During those 12 months, employees only petitioned for unionization 1,163 times. There are many reasons to expect that less unionization would have occurred during this period when many businesses were closed or operating on a more remote basis. The NLRB itself had reduced operations as a result. Plus, generally, workers had more pressing concerns than becoming unionized.

That being said, it is possible that the experiences of the pandemic prompted more employees to seek unionization as the COVID restrictions waned. In the first half of FY 2022, more union election petitions were filed than in the two half-year periods preceding the pandemic–16% more than the first half of FY 2020, but only 4% more than in the second half of FY 2019.

The RC petition filings in the first half of FY 2022 appear to reflect a return to pre-COVID union organizing efforts. However, there is a significant asterisk. At least 178 of the 976 (18%) union election petitions filed in those six months involve Starbucks, which is experiencing a unique proliferation of store-by-store unionization. Without those petitions, the total level would be closer to 800 filings–still below pre-pandemic levels.

New York RC Petitions

Between 2011 and 2020, employees filed an average of approximately 245 RC cases each year in New York. In the past year, only 210 were filed.

New York City was the initial epicenter of the COVID-19 outbreak in the United States. Thus, it would not be surprising that union representation petitions declined sharply in New York in 2020.

The following graph shows a breakdown of RC petition filings over the past six half-fiscal-year periods.

Statewide, RC petitions fell 57% between the first and second halves of FY 2020. They then began to increase gradually. In the first half of FY 2022, employees filed 113 union election petitions in New York–still down 16% from the corresponding period immediately pre-COVID, but virtually the same as the level of such filings in the second half of FY 2020.

The NLRB is divided into 26 regions across the country. Each region has one or more offices that process cases filed within their geographic area. New York State is split into three NLRB regions. Downstate, Region 2 serves Manhattan, the Bronx, and Orange, Putnam, Rockland, and Westchester counties, while Region 29 serves Brooklyn, Queens, Staten Island, and Nassau and Suffolk counties. Region 3 serves the rest of the state.

In the first six months of the COVID pandemic, RC filings dropped 71% in Region 29. The smaller declines of 46% in Region 2 and 52% in Region 3 were still much higher than the 24% decline experienced outside the state.

Election petitions remain down in Region 29, perhaps reflecting the intensity of the pandemic’s impact in the area. The first-half FY 2022 filings in Regions 2 and 3 are more in line with the apparent national rebound.

But, in Region 3, 11 of the 31 (35%) RC petitions involve Starbucks. In fact, the first Starbucks store to unionize is in Buffalo, where Region 3 is headquartered. Starbucks also accounted for 4 of the 21 filings in Region 29.

Decertification Petitions – RD

Employees who no longer want to be represented by a union may file a decertification (RD) petition upon a showing of support by at least 30% of the workers in a bargaining unit. The filing of decertification petitions has followed a similar trajectory as RC petitions over the past few years. This co-occurrence may further demonstrate that COVID, not an employee shift in pro-union sentiment, is the biggest factor in these data.

In New York, decertification petitions have remained steady over the past three years despite the pandemic. Given the relatively small number of decertification cases, it may be hard to draw any conclusions from this observation.

If anything, perhaps the COVID pandemic had less of an impact on decertification efforts than it did on unionizing efforts. Nationwide, RD petitions fell just 9% in the second half of FY 2020 (compared to the first half of that year), while RC petitions were down 29%. And in the first half of FY 2022, decertification efforts are up 29%, versus 16% for elections seeking union representation (which would still be down but for the Starbucks situation).

Union Election Outcomes

Not all NLRB representation petitions result in an election. In many cases, the petition is later withdrawn by the filing party or dismissed by the NLRB. The statistics above include all petitions filed regardless of the outcome.

RC Election Results

Across the U.S., only 2,893 of the 4,624 (63%) RC petitions filed since April 2019 have produced an election. As of April 15, 2022, 11% remain open. The other 26% were either dismissed or withdrawn for many different reasons. (Some of the dismissed/withdrawn cases were likely re-filed and are counted separately in the data.)

Of the 2,893 completed elections in the past three years, unions won 71% (70% outside of New York). Including the petitions that didn’t result in an election (but excluding those that remain open), 50% of RC petitions led to union representation.

During this time, unions have won 76% of the elections in New York, similarly resulting in union representation half the time an RC petition is filed.

Within New York, the union win percentage is highest in the NYC area: 77% in Region 2 and 79% in Region 29. The Region 3 rate of 72% for Upstate New York is closer to the national average.

It is possible that COVID-19 had a slight impact on union elections at the beginning of the pandemic. Both nationwide and in New York, the union win rate went down slightly in the second half of FY 2020.

The 62% New York union win rate in the first half of FY 2022 is interesting, but might be a statistical quirk given that nearly 40% of the cases filed during this period remain open. It is possible that still-pending elections are somehow more likely to be won by the union. But if this win rate persists once these cases are resolved, it would raise an important question of whether the pandemic or another underlying factor has produced the decline.

RD Election Results

Decertification elections are less successful in New York. Outside of New York, 62% of completed elections resulted in decertification in the past three years, compared to only 51% in the state. Despite considerably fewer RC petitions, Region 3 produced the majority of RD elections in New York (22 out of 35).

Are Union Elections Becoming More Common?

For Starbucks, absolutely. The coffee retailer has nearly 9,000 company-owned stores in the U.S. Most other quick-service restaurant chains rely more heavily on franchising, likely making them less vulnerable to (though not immune from) the type of organizing campaign Starbucks is currently experiencing.

Especially when excluding the Starbucks election petitions, it is hard to read the available statististics to reflect a general uptick in unionization. That’s not to say such a trend isn’t developing. And perhaps the pandemic will prove a motivating factor for more union elections. But, to date, the data more likely suggest only that union organizing is getting back to where it stood before COVID.

All data was obtained from the National Labor Relations Board website.

March 29, 2022

New York Employment Discrimination Update (Webinar Recap)

On March 29, 2022, I presented a complimentary webinar entitled “New York Employment Discrimination Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Legislative Developments
Agency Procedures
Trends & Statistics
Requirements & Precautions

and much more!

New York Governor Kathy Hochus recently signed new state laws designed to increase employee protections against employment discrimination. This webinar discusses these amendments, plus additional pending legislation. How will the new laws affect employers?

The webinar also addresses recently released data on federal employment discrimination charges filed with the EEOC. Learn about a decline in claims and what it may mean.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “New York Employment Discrimination Update”

There are specific new provisions that New York employers should become aware of, including a new form of retaliation based on release of employee personnel files. The New York Division of Human Rights must also create a new sexual harassment complaint hotline to assist employees in filing claims. Proposed legislation that may be coming next would require even more dramatic changes to employer practices.

The presentation includes analysis of data from the EEOC for fiscal year 2021. We discuss the operational and filing trends and what they may suggest about the prevalence of employment discrimination and employee motivations to assert claims.

This subject is not going away, and the likelihood of liability for New York employers may be increasing. Thus, we also consider the difference between required preventative measures and options to better protect your organization from employment discrimination.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

March 18, 2022

Continued Expansion of New York Worker Discrimination Laws

On March 16, 2022, New York Governor Kathy Hochul signed legislation aimed at protecting employees from sexual harassment and other forms of employment discrimination. The amendments modify the New York Human Rights Law, which serves as the primary source of New York worker discrimination laws. Some provisions took effect immediately (if not sooner!). A requirement for a new hotline will take effect later this year.

Covered Entities & Workers

One amendment “clarifies” the definition of “employer” under the Human Rights Law. The pre-existing definition was simply and broadly defined to include “all employers within the state.”

In some cases, courts have concluded that this wording did not sufficiently extend the Human Rights Law’s protections to the staff of elected officials or attorneys working for state judges. Accordingly, the law now expressly states that “the state of New York shall be considered an employer of any employee or official, including any elected official, of the New York state executive, legislature, or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official in New York state.”

The amendment similarly addresses local government entities. It provides that “a city, county, town, village or other political subdivision of the state of New York shall be considered an employer of any employee or official, including any elected official, of such locality’s executive, legislature or judiciary, including persons serving in any local judicial capacity, and persons serving on the staff of any local elected official.”

Rather than merely take effect immediately, this amendment provides that it took effect upon enactment of a previous revision to the Human Rights Law’s definition of employer in 2019. It’s not clear whether courts will actually apply the new definitions retroactively,

Personnel Records Retaliation

In addition to discrimination based on certain personal characteristics, the Human Rights Law prohibits retaliation against individuals who raise discrimination claims or otherwise participate in efforts to redress discrimination. Retaliation is a broad concept under the law. But there is now an express provision ensuring that one form of employer conduct will qualify.

Effective immediately, an employer may not retaliate against a protected employee by disclosing the employee’s personnel files. There is an exception for disclosure in a legal proceeding. But, otherwise, any release of employee information arguably violates the law. This amendment may limit an employer’s ability to publicly dispute even demonstrably false claims by former employees who have alleged discrimination.

Prosecutorial Authority

The New York Attorney General now has the authority to sue an employer for workplace retaliation. This amendment doesn’t prevent an employee from doing so directly in the courts or through a government agency. But it creates a new avenue for prosecuting employers whose employees choose not to make a retaliation claim. This new provision may even permit the Attorney General to pursue a claim where the employee involved has already settled their dispute with the employer.

Sexual Harassment Complaint Assistance Hotline

By July 14, 2022, the New York State Division of Human Rights must establish a confidential hotline “to provide individuals with complaints of workplace sexual harassment counsel and assistance.” The hotline will be available at least during regular business hours from 9:00 a.m. to 5:00 p.m.

The amendment specifies that the hotline will provide a means for workers to connect with “attorneys experienced in providing counsel related to sexual harassment matters who can provide pro bono assistance and counsel.” The attorneys who participate may not solicit the workers they speak with to retain them for representation in the discussed sexual harassment complaint.

While well-intended, there are some questions regarding the logic of this requirement.

First, how willing are such “experienced” attorneys going to be to provide free advice without the possibility for remuneration? Most likely, participating attorneys will typically be pointing employees to file a complaint with the Division of Human Rights. That is effectively the same result as the current scenario where an employee contacts the Division regarding sexual harassment allegations.

Second, why limit the hotline to sexual harassment, which is just one form of employment discrimination prohibited under the New York worker discrimination laws? And most lawyers experienced in sexual harassment claims also handle other forms of discrimination. And, interestingly, the wording of the law doesn’t specifically prohibit the pro bono attorneys from representing (for compensation) the employees who call in claims outside of sexual harassment. Could that create a peculiar incentive for the attorneys to discourage sexual harassment claims in favor of others they may have?

Once in place, information about the hotline will be a component of required employee rights notices and postings.

Complying with Worker Discrimination Laws

These are just the latest developments among a recent trend of stricter worker discrimination laws in New York. Employers must continually focus on preventing harassment and discrimination before it occurs and remedying it as soon as possible if it does. While introducing comparatively few affirmative obligations, these amendments will at least incrementally increase the risk of claims. Strong anti-discrimination policies and training are among the best available measures to avoid improper workplace conduct. But sound overall human resources practices are critical in that mission.