Tag: unions

December 23, 2021

NYS DOL Proposes Workplace Safety Committee Rules

The New York HERO Act included provisions enabling workers to form workplace safety committees at their jobs. Those provisions had a November 1, 2021 effective date, and the NYS Department of Labor had promised additional guidance by then. Finally, on December 22, 2021, the DOL issued proposed workplace safety committee rules. Where does this leave employers faced with complying with the HERO Act’s workplace safety committee requirements?

Procedural Status & Impact

As “proposed” rules, the DOL’s latest word on workplace safety committees initially has no formal legal impact. The DOL is scheduled to hold a hearing on the proposed workplace safety committee rules on February 9, 2022. Interested parties may submit written comments on the proposed rules through February 14, 2022. At some point after that date, the DOL may finalize rules regarding the HERO Act‘s workplace safety committee requirements.

Until the DOL publishes final rules, employers face a compliance dilemma. The statutory workplace safety committee provisions have been, at least arguably, in effect since November. Some employers have undoubtedly attempted to comply with the law before these proposed regulations were available. Many of the resultant workplace safety committees may not satisfy the parameters of the proposed regulations, which were not wholly predictable from the statutory language.

There may be a reasonable debate whether employers are legally subject to the workplace safety committee portion of the HERO Act before the DOL finalizes its regulations. Indeed, the statute states that “The commissioner [of labor] shall adopt and amend rules and regulations to effectuate the provisions and purposes of this section.” Until such regulations have been adopted, has the law been effectuated?

Establishment of Workplace Safety Committees

When

Since the HERO Act became law, there has been uncertainty whether all covered employers (private employers with 10+ employees in NYS) must form a workplace safety committee. The DOL’s proposed rules indicate that employers need only recognize a workplace safety committee after at least two employees have requested one in writing.

Upon receiving such requests, employers must respond “with reasonable promptness.”

Interestingly, after one workplace safety committee has been formed at a worksite, the proposed rules provide that the employer must deny subsequent requests and refer them to the existing workplace safety committee.

Where

The HERO Act limits workplace safety committees to one per “worksite.” The proposed workplace safety committee rules address the meaning of “worksite” at length.

Worksites may be a single location or multiple that are in close proximity. However, separate buildings or facilities not close enough together or run distinctly may be considered different worksites. Despite some bright lines, the proposed rule seemingly leaves enough room for ambiguity to frustrate many employers.

The worksite of employees who travel, telecommute, etc., is “the worksite to which they are assigned as their employer’s home base, from which their work is assigned, or to which they report.”

Notably, workers at worksites with less than 10 employees could still form workplace safety committees if the employer has at least 10 employees statewide.

The proposed rules make an exception for “temporary worksites,” where no employee works for less than 20 days. The employer need not recognize a workplace safety committee at such a location.

Who

The law requires that at least two-thirds of the committee’s members be “non-supervisory employees.” The proposed rules define “non-supervisory employees” as those who do not “perform supervisory responsibilities, which includes but is not limited to the authority to direct and/or control the work performance of other employees.” Curiously, the rules further state that non-supervisory employees exclude “managerial and executive employees” without defining those categories.

The DOL proposes a cap on the number of members of a workplace safety committee. Any committee is limited to the lower of 12 members or one-third of the total number of employees at the worksite. The minimum number is three members.

Following the statutory language, the proposed rules state:

At a worksite where there is a collective bargaining agreement in place, the collective bargaining representative shall select the employee representatives, who may be any non-supervisory employee covered by the collective bargaining agreement.

On the other hand:

Non-supervisory employees at a worksite without a collective bargaining agreement in place shall be selected by and amongst the employer’s non-supervisory employees as determined by the non-supervisory employees of the employer.

The DOL provides examples of possible selection methods, including “self-selection,” “nomination by co-workers,” and “elections.”

Surprisingly, the rules don’t specifically address who determines how many non-supervisory employees will be on the committee or who selects them. It only states that the employer must appoint a representative to serve as co-chair. But this employer representative may be “a non-supervisory employee, an officer, the employer, or other representative.” And, according to the proposed rules, “No non-supervisory employee may be a member of two different workplace safety committees for the same employer.”

Committee Activities

The HERO Act provides an assortment of functions for workplace safety committees to serve. The proposed rules offer some effort to clarify them.

The rules go so far as to suggest a workplace safety committee may “establish rules or bylaws,” which “may include but are not limited to procedures for the selection of new members, terms of members, and the training of new members.” However, the DOL cautions that any bylaws that exceed or conflict with the HERO Act’s grant of responsibilities would be ineffectual.

Failing alternative adopted rules or procedures, the proposed regulations provide that committee actions would be taken only by majority vote.

The rules reiterate statutory provisions regarding paid meeting and training time. The employer must pay committee members for participating in meetings of up to two hours per quarter and training of up to 4 hours per year. The DOL suggests committee members can meet or otherwise work on committee matters for more than two hours per quarter outside of work hours and without pay, unless the employer agrees to provide payment.

Employer Obligations

Although the proposed workplace safety committee rules don’t specifically address the committees’ statutory rights to review workplace safety and health policies, they do provide that employers must respond to requests for such policies “within a reasonable amount of time.”

Employers must similarly “respond, in writing, to each safety and health concern, hazard, complaint and other violations raised by the workplace safety committee or one of its members within a reasonable time period.”

Companies must also notify, in advance, their workplace safety committee of any visits by an outside government official enforcing safety and health standards.

What Should New York Employers Do Now?

The best news about the proposed workplace safety committee rules is that they don’t suggest employers must do anything before receiving written requests from at least two employees about the creation of a committee. However, the big questions come if you receive such requests.

Private employers with at least 10 employees in New York are arguably required to allow employees to form a workplace safety committee now. But the path to doing so is fraught.

Employers could attempt, where feasible, to follow the proposed rules. However, it seems highly unlikely that the proposed rules will be adopted in precisely their current form. There are simply too many holes in the regulations for them to stand as proposed. Frankly, one wonders if the DOL even intends, as it often does, that its proposed rules will become the final rules. Perhaps, they just finally issued something to get the process started in the face of a direct legislative mandate that they were already tardy in satisfying.

But employers who wish to ignore the proposed rules in favor of the statutory text will find that lacking in relevant respects. Even the Legislature knew that the HERO Act alone wouldn’t provide a workable framework for creating workplace safety committees. They affirmatively passed that responsibility to the DOL. Which begs a question. . . .

Is the Workplace Safety Committee Component of the HERO Act Legally Enforceable?

I have serious doubts. The statute itself is likely too vague to enforce. Can that be saved by “clarifying” DOL regulations? Perhaps. But is it possible for the DOL to issue regulations that are both consistent with the statutory language and not inconsistent with other legal principles?

The references to worksites with collective bargaining agreements in place seem particularly problematic. Here, the Legislature missed the mark in critical respects. First, it totally ignored the reality that many worksites have multiple bargaining units, potentially with separate unions representing them and/or with multiple collective bargaining agreements. Then there’s the matter of unrepresented non-supervisory employees at worksites with bargaining units. The law and the proposed rules seem to grant the bargaining representative the right to dictate whether such unrepresented employees have any participation in the workplace safety committees. Plus, the law peculiarly relies on the existence of a collective bargaining agreement. But what if the agreement has expired or a representative has been selected, but not yet negotiated a first contract? Does the bargaining representative have no role in determining the workplace safety committee members? Since private-sector collective bargaining is primarily regulated by federal labor laws, is there a preemption question?

Time will tell, but I would be surprised if we don’t see serious challenges to the HERO Act’s whole workplace safety committee scheme. In the meantime, employers facing the formation of workplace safety committees are strongly encouraged to consult with experienced labor and employment counsel.

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May 6, 2021

New York HERO Act Goes Far Beyond COVID

On May 5, 2021, New York Governor Andrew Cuomo signed new State laws regulating workplace safety, known as (though not formally entitled) the Health and Essential Rights (HERO) Act. The HERO Act requires employers to implement safety plans and permits employees to form workplace safety committees. The Act only applies to private (i.e., non-government) businesses and organizations.

In approving this legislation, Governor Cuomo issued a memorandum indicating that “technical” amendments will be forthcoming. This wrinkle complicates forecasting when the new requirements will ultimately take effect.

Airborne Infectious Disease Exposure Prevention

A new section 218-b of the New York Labor Law will impose new requirements regarding “prevention of occupational exposure to an airborne infectious disease.”

Airborne Infectious Disease

This term is defined to mean “any infectious viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated a highly contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health.”

Covered Employees

The HERO Act is unusually expansive in its definition of “employee”. The term broadly includes “any person providing labor or services for remuneration for a private entity or business within the state.” Beyond workers with a direct employment relationship, it expressly includes:

independent contractors;
individuals working for staffing agencies, contractors, or subcontractors on behalf of the employer at any individual work site; and
any individual delivering goods or transporting people at, to, or from the worksite on behalf of the employer.

Worksites

Likewise, the term “worksite” is relatively broad in scope. It is defined as “any physical space, including a vehicle, that has been designated as the location where work is performed”. This definition includes employer-provided housing and transportation, but does not include an employee’s residence (unless provided by the employer).

Supervisors

The HERO Act defines supervisors as “any person who has the authority to direct and control the work performance of other employees, or who has the managerial authority to take corrective action regarding the violation of the law, rules or regulations.” Any employee who is a member of a bargaining unit that primarily represents non-supervisory employees does not qualify as a supervisor under the Act.

Forthcoming Standards

The law requires the New York Department of Labor to publish industry-specific model airborne infectious disease exposure prevention standards. These will establish minimum requirements that employers must meet.

In addition to whatever else the DOL, in consultation with the NYS Department of Health, mandates, the standards must address:

Employee health screenings.
Face coverings.
Personal protective equipment (PPE) for eyes, face, head, and extremities.
Protective clothing.
Respiratory devices.
Protective shields and barriers.
Accessible workplace hand hygiene stations.
Regular cleaning and disinfecting of shared equipment and frequently touched surfaces and all surfaces and washable items in other high-risk areas.
Social distancing for employees, consumers, and customers.
Compliance isolation and quarantine orders.
Engineering controls, such as airflow and exhaust ventilation.
Designation of a supervisory employee to enforce compliance. (“Non-supervisory line employees shall not bear responsibility for overseeing compliance with the requirements of the model policy.”)
Compliance with applicable laws or guidance on notification of potential exposure to airborne infections disease at the worksite.
Verbal review of the infectious disease standard, employer policies, and employee rights under the HERO Act with employees.
Anti-retaliation protections.

Once the model airborne infectious disease exposure plans are available from the State, employers must either adopt the applicable model plan or establish an alternative plan that meets or exceeds the minimum standards included in the model standards.

In unionized companies, the employer may only adopt an alternative to the model plan if the union agrees. Moreover, even where there is no union representing employees, the employer can only implement an alternative plan “with meaningful participation of employees.”

Once adopted, employers must provide their plans in writing to all employees. The plan must also be posted “in a visible and prominent location within the worksite.” If the employer has an employee handbook, it must also include the plan there.

Retaliation Prohibitions

The HERO Act prohibits employers and their agents from taking adverse action against an employee for:

Exercising their rights under the law or applicable infectious disease exposure prevention plan.
Reporting violations of the law or plan.
Reporting an airborne infectious disease exposure concern.
Refusing to work based on a good faith belief of an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws or other government orders, despite notice to the employer of the inconstant working conditions that the employer failed to address.

Penalties for Violations

The DOH may assess a civil fine upon any entity or person who violates the HERO Act. The penalty is at least $50 per day for not adopting an airborne infectious disease exposure plan and between $1,000 and $10,000 for failure to abide by an adopted plan. These penalties rise to at least $200 per day and $1,000-$20,000, respectively, for repeat violations.

In addition, any employee may sue an employer for any violation of an airborne infectious disease exposure plan that allegedly “creates a substantial probability that death or serious physical harm could result”. Employees may receive “all appropriate relief,” including reimbursement of attorneys’ fees and liquidated damages of up to $20,000.

In his approval memorandum, Governor Cuomo cautioned that amendments to the enforcement procedures are necessary. He wants to “limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.”

Workplace Safety Committees

In addition to the airborne infectious disease plan requirements, a new section 27-d of the NY Labor Law permits employees to organize workplace safety committees that employers (with at least 10 employees) must recognize and deal with to address any safety and health issues. These issues are by no means limited to airborne infectious disease prevention.

Note that the workplace safety committee provisions are in a separate statutory section from the airborne infectious disease exposure plan requirements. As a result, some terms are defined differently between the two components. For example, independent contractors do not appear to be “employees” who qualify to be committee members.

Committee Structure

The law requires that these workplace safety committees must include both employer and employee representatives. At least two-thirds of the members must be non-supervisory employees. One “employee” representative and one “employer” representative must co-chair the committee.

More than one committee may exist to represent “geographically distinct work-sites.”

Committee Activities

Workplace safety committees may do all of the following:

Raise health and safety concerns, hazards, complaints, and violations to which the employer must respond.
Review any policy put in place in the workplace required by the NY Labor Law or the Workers’ Compensation Law and provide feedback to such policy.
Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.
Participate in any site visit by any governmental entity responsible for enforcing safety and health standards.
Review any report filed by the employer related to the health and safety of the workplace.
Regularly schedule a meeting during work hours at least once a quarter.

In addition to paid quarterly meetings, employers must allow “safety committee designees” to attend a training on “the function of workers safety committees, rights established under [§ 27-d], and an introduction to occupational safety and health,” “without a loss of pay.”

Employers may not retaliate against employees for their participation in the activities of a workplace safety commission.

Collective Bargaining Waiver

Companies with unionized employees may negotiate out of the workplace safety committee requirements in their collective bargaining agreements. However, any such waiver must specifically reference NY Labor Law § 27-d.

When Must Companies Act?

No aspect of the HERO Act took effect immediately.

The airborne infectious disease exposure plan requirements could take effect in as little as 30 days, which would be June 4, 2021. However, employers won’t have to adopt these plans until the Department of Labor sets the minimum standards and issues the industry-specific models.

The workplace safety commission provisions are not scheduled to take effect for six months, on November 1, 2021.

Either of these effective dates could change based on the statutory amendments Governor Cuomo requested.

For now, New York businesses are already subject to COVID-19 safety requirements along the lines of what the HERO Act will require to be addressed in permanent airborne infectious disease safety plans. This new law primarily mandates that employers remain prepared to avoid and/or deal with future pandemics.

The more dramatic impact of the HERO Act will likely be the creation of workplace safety committees. This development essentially imposes an ongoing “union-like” bargaining obligation for New York companies with at least 10 employees. Among the unanswered question is whether even a single employee’s request is sufficient to mandate the creation of a safety committee.

The Department of Labor will be busy coming up with standards and regulations regarding many aspects of these new laws. Employers must remain alert to future developments to prepare for implementation and ensure ongoing compliance.

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February 23, 2021

PRO Act Reintroduced To Expand Federal Labor Rights

The Protecting the Right to Organize Act (PRO Act) was reintroduced in the U.S. House of Representatives on February 4, 2021. The House passed this bill in 2020, but it was dead on arrival in the then-Republican-controlled Senate. As proposed, the PRO Act remains unlikely to win Senate approval this year. However, Democrats will continue to advocate vigorously for its sweeping pro-labor measures.

PRO Act Targets – What Laws Would Change?

The full PRO Act aims to amend several federal labor laws, including the National Labor Relations Act (NLRA) and the Labor-Management Reporting and Disclosure Act (LMRDA).

These laws currently govern the relationship between employers and labor unions in private (non-government) workplaces. They address how employees organize to engage in collective bargaining and things like what public disclosures unions must make about their finances. The NLRA also provides direct protections to employees who are not represented by unions.

Expanding Worker Coverage

The PRO Act includes several measures to expand the NLRA’s rights to more workers. It does this by classifying more workers as “employees.”

Independent Contractors

The NLRA covers “employees,” which is defined to exclude some workers in a workplace. One excluded category includes individuals who are off the employer’s payroll, but still provide services for the company. Often identified by receiving a Form 1099 vs. a W-2 for tax purposes, these workers are considered “independent contractors.”

The PRO Act would expand the universe of employees by further limiting those who qualify as independent contractors.

An individual would only qualify as an independent contractor if all of the following apply:

The individual is free from the employer’s control in connection with the performance of the service.
The service is performed outside the usual course of the business of the employer.
The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

Supervisors

Recognizing that a business must have a management team to represent it in dealing with unions, the NLRA excludes “supervisors” from the group covered as employees.

Currently, a supervisor is “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

The PRO Act would fundamentally change the definition in two ways. First, it would remove “assign” and “responsibly to direct” from the list of supervisory duties. Second, it would require that one or more of the remaining functions occupy “a majority of the individual’s worktime.” The result would be fewer “supervisors” and more “employees.”

Joint Employers

The National Labor Relations Board (NLRB), which administers the NLRA, has vacillated on its joint employer standard in recent years. The question is whether two separate business entities both qualify as an employee’s employer. Typical scenarios involve staffing agencies and franchised businesses.

With a current Republican majority, the NLRB has returned to a less expansive interpretation of joint employer status. This approach is generally considered good for business and not as beneficial for employees, or at least unions. The PRO Act would codify a broad joint employer standard. A company would qualify as an individual’s employer even with only indirect control or reserved authority to control the work relationship.

Expanding Workers’ Rights

Some aspects of the PRO Act would diminish employers’ control over their businesses by shifting it to the employees.

Strike Replacements

Unless they have contractually waived the right, employees and their unions may strike to gain bargaining leverage with their employers. Under longstanding law, employers have the right to hire permanent replacements for striking workers in many situations. The PRO Act would strip employers of that right to make it harder for companies to operate without striking workers. It would also enable unions to engage in “secondary” picketing, strikes, or boycotts in support of a third-party company’s workers.

Lockouts

The flip side of going on strike, employers may “lock out” their employees (i.e., keep them from working) during contract negotiations. The PRO Act would prohibit lockouts before the union has initiated a strike.

“Captive Audience Meetings”

The NLRA allows employers to hold meetings where they share their views on a union organizing campaign with employees. Attendance may be mandatory, as the employees are being paid, but employers must stay within legal parameters on what they say.

The PRO Act would make such meetings illegal despite continuing to permit unions to meet with employees they seek to organize.

Additional Issues

The PRO Act is an omnibus pro-labor bill. It contains virtually every legal change unions would universally like to have made to the NLRA. Beyond those described above, provisions include:

Requiring employers to maintain existing terms of employment indefinitely until a first contract is negotiated with a newly recognized union.
Introducing interest arbitration to establish a first contract, with awards based largely on employee prosperity.
Making misclassification of an employee as an independent contractor a direct violation of the NLRA.
Prohibiting class-action litigation waivers.
Establishing expedited union election rules.
Enabling the NLRB to overrule election results and direct union representation upon a finding of employer interference in a fair election.
Permitting employees to use company email for “concerted activity,” including unionizing activity.
Eliminating “right to work” states by entitling unions to receive “fair share” fees from non-member employees notwithstanding contrary state laws.
Compelling employers to notify all employees, including new hires, of their rights under the NLRA.

Expanding Penalties

The NLRA has never relied on extensive monetary damages to compel compliance. Instead, it emphasizes legally enforceable “make whole” orders that require employers to take action consistent with the law (or refrain from inconsistent action). The law does, however, require employers to compensate employees for lost earnings and benefits connected to unlawful conduct.

The PRO Act introduces a broader array of financial consequences for unfair labor practices. Borrowing from other employment laws, it would make front pay and consequential damages, as well as liquidated and punitive damages and attorneys’ fees, recoverable. But it goes further than other federal employment laws by authorizing double liquidated damages (additional damages equal to twice the lost wages award) and eliminating the common mitigation requirement (allowing employees to recover wages even that they have already earned through alternative employment).

In addition to damages payable to workers, the PRO Act introduces various civil penalties payable to the government. Penalties could reach $50,000, or $100,000 for a repeat offense or one that involves employee discharge or serious economic harm.

The PRO Act would also enable employees to bypass the NLRB and take their claims of NLRA violation to the courts in many situations.

Persuader Activity Disclosure

By amending the LMRDA, the PRO Act would require employers to engage in broader public disclosure of arrangements with consultants related to labor-relations activities. This expansion aims to include representation by attorneys, potentially curtailing the attorney-client privilege.

Study of Foreign Labor Laws

The PRO Act requires the Comptroller General to complete a study of “the laws, policies, and procedures in countries outside the United States governing collective bargaining at the level of an industry sector, including the laws, policies, and procedures involved in” issues related to collective bargaining. Congress would receive this report in support of considering additional changes to U.S. labor laws. Recognizing that many countries have a structural history of more extensive union involvement in business operations, this reporting requirement aims to yield even more pro-labor amendments.

Employers Beware

Simply put, the PRO Act would radically alter the landscape of American workplaces, as is the intent. The balance of power would undeniably shift toward employees and unions in particular.

The current 50-50 split in the U.S. Senate may keep the PRO Act from becoming law in its entirety. Republicans would almost certainly filibuster the legislation to prevent it from coming up for a vote. However, Democrats will not stop trying to legislate for as many of the PRO Act’s components as possible. They may be able to achieve some through the filibuster-proof reconciliation process and perhaps some even through old-fashion political dealmaking with Republican Senators.

So, while the PRO Act’s enactment is not an imminent certainty, the prospect should keep the business community on alert. If the filibuster falls by the wayside and/or Democrats gain a larger majority in Congress, these dramatic labor changes could become a stark reality.

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