Tag: unions

2020 Election Results for NY Employers Cover Slide

What the 2020 Election Results Mean for New York Employers (Webinar Recap)

On January 26, 2021, I presented a complimentary webinar called “What the 2020 Election Results Mean for New York Employers”. 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:

  • Still Coping with COVID
  • Biden Administration Priorities
  • Anticipated New York Legislation
  • Unemployment
  • Union Activity

Without making concrete predictions, we can anticipate what the general tone of new administrative and legislative priorities will look like. Under Democratic-led executive and legislative branches, both the New York State and federal governments are likely to expand worker protections, and hence employer obligations, in 2021.

The groundwork is already in place for further developments related to the coronavirus pandemic. But the initiatives won’t end there. We expect the long-term impact on the workplace of the 2020 elections to be significant.

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

Why You Should Watch “What the 2020 Election Results Mean for New York Employers”

New York employers have already been facing ever-increasing legal obligations regarding the workforce. This trend will continue in 2021 and may go much further than before. Beyond Albany, the federal government is now also poised to shift rights to employees. This will further establish the critical function of maintaining human resources compliance for all New York employers.

Among the administrative and legislative priorities in Washington will be renewed support for the labor movement. The 2020 election results will inevitably revitalize union organizing efforts as well as empower unions in collective bargaining. Any private-sector employers with unions or at any risk of unionization should be aware of this shift and prepare now to best position the company in its labor relations.

Other areas of focus will include leave laws, minimum wage, and worker health and safety. Staying on top of these changes will be a huge task for employers in 2021. Watch this webinar to prepare yourself for what’s to come.

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Union Election Procedures

Union Election Procedures to Change in 2020

In December 2019, the National Labor Relations Board finalized a rule to modify its union election procedures. This action will slow down the election process, giving companies more time to respond to election petitions. It ends a five-year reign of so-called “quickie elections.”

The new procedures will be in place beginning April 16, 2020.

2014 “Quickie-Election” Rules

The NLRB substantially changed its election procedures in 2014. Under the Obama Administration, the Democrat-led NLRB revised the rules to expedite elections. Those changes were primarily intended to reduce companies’ opportunity to respond to union organizing efforts. In other words, making it easier for employees to unionize.

In addition to condensing the timeline, the 2014 rules created a new disclosure requirement for employers. They required companies to provide extensive information about their workforce and response to the election petition in writing often in one week.

More Balanced Approach

As of April 16, 2020, the rules will change again to give employers more time to respond. The now Republican-led Board has not, however, completely reverted to the pre-2014 union election procedures.

There are many nuances to these procedures. Here are just some of the most impactful changes:

More Time Before Pre-Election Hearing

The 2014 rules provided for a pre-election hearing as soon as 8 days after the union filed an election petition.

The new rules delays hearing to the 14th business day. As before, the NLRB Regional office can postpone the hearing for good cause.

Statement of Positions Remains

Employers understandably did not appreciate the new requirement of preparing and submitting a Statement of Position after receiving an election petition. However, the NLRB has decided to keep that requirement in place. But they are making a couple of compromises in this area.

First, employers will now have 8 business days to file the Statement of Position. Under the 2014 rules, they often only had 7 calendar days, with a hearing to follow the next day.

Second, unions must now also file a written Statement of Position. The union has until 3 days before the hearing to do so.

Expanded Scope of Pre-Election Hearings

The 2014 union election procedures limited the subject matter of pre-election hearings to relatively few subjects. Fundamentally, they were limited to determining whether a question of representation exists. This required an appropriate bargaining unit to be identified, but did not allow employers to litigate individual voter eligibility or inclusion in the bargaining unit before the election. If the parties did not mutually agree on those issues, the NLRB would decide them after the election, if necessary, depending on the results.

Under the new rules, voter eligibility and unit inclusion issues usually will be part of the pre-election hearing process. This includes litigation over supervisory status. That question can be significant, as supervisors are not eligible to join a unionized bargaining unit. Moreover, employers can rely on supervisors as part of their election preparations. Thus, it is valuable to know who does and doesn’t qualify in that capacity under the National Labor Relations Act before the election takes place.

The new rules will also bring back the right for parties to call witnesses at the pre-election hearings. The 2014 rules limited the ways parties could present evidence at this stage.

Post-Hearing Briefs

With a focus on quick elections, the 2014 rules eliminated written post-hearing briefs by the parties. They would just be something else taking time to prepare, read, and respond to, after all!

The new union election procedures will allow the parties to summarize their positions in writing after the pre-election hearing. They have 5 business days after the hearing to submit briefs. The hearing officer can allow up to 10 additional days.

Scheduling the Election

Before the 2014 rule changes, union elections usually occurred 25-30 days after the direction of an election. That means, once the parties resolved all preliminary matters, either mutually or by hearing decision, the election would take place about 4 weeks later.

The 2014 union election procedures, moved that timeline up considerably. They required a Regional Director to “schedule the election for the earliest date practicable . . . .” That resulted in reducing the time between petition and election from 38 days to 23 days. The NLRB shows these statistics here.

The rules effective April 16, 2020, will return closer to the pre-2014 timeline. They provide that regional directors “normally will not schedule an election before the 20th business day after the date of the direction of election.”

More Time for Voter Lists

Once an election is scheduled, the employer must give the union a list of all eligible voters with contact information. Under the 2014 rules, companies only had 2 days to do so following the direction of an election. Now they will have 5 days.

Good and Bad News for Employers

Most companies should welcome these changes to the NLRB’s union election procedures. If nothing else, it gives you more time to respond if you do receive an election petition. And most employers will welcome the time to review their options in hopes of staying union-free.

But, there is a potential short-term downside to the rule changes. Significantly, they don’t take effect until April 16, 2020. Before then, the 2014 union-friendly rules remain in effect. This may result in unions rushing to begin election proceedings under the “quickie election” rules.

Companies that have any concern of a potential union organizing effort should evaluate the heightened possibility of an election petition in the first quarter of 2020. It is always better to be proactive if you want to keep a union out. This primarily means doing the right thing by your employees. But it also includes knowing the relevant procedures, legal parameters, and other logistical best practices. If you have any concerns in this area, you should consult with an experienced labor attorney sooner rather than later.

 

For more on what the NLRB has been up to, check out our upcoming webinar: NLRB 2020: Updates for All Private Sector Employers

Students Out of Unions

NLRB Proposes to Keep Students Out of Unions

On September 23, 2019, the National Labor Relations Board (NLRB) issued a proposed rule that would address whether college and university students who work for their schools can join unions. This rulemaking is a new approach to resolving a labor law question that has not had a consistent answer in recent decades. The proposed rule would enable institutions of higher education to keep their students out of unions.

Are Students Employees?

Many students hold jobs with their schools. For example, many graduate students serve as teaching assistants. The students often receive compensation for this work, whether direct compensation or credit toward their education costs.

The question of interest under the National Labor Relations Act (NLRA) is whether these students qualify as “employees” who have the right to form or join a union. Specifically, that is, a union that would negotiate on their behalf with the school over the terms and conditions of their employment.

This question has even come up in recent years regarding college football players. Should they be able to unionize because they receive a scholarship to play football?

(Note: The NLRB only has jurisdiction over private, non-governmental employers. Accordingly, public colleges and universities are outside its jurisdiction. However, the many private schools in the country are within its purview.)

Historical Approach

For many years, the NLRB has interpreted the NLRA primarily through adjudicating cases. It rarely used formal rulemaking to establish legally binding interpretations of the law. The Board’s adjudicative approach has increasingly produced a back-and-forth pendulum on many contentious issues. As a result, the labor law’s protections depend more and more on which party controls the NLRB.

In 1974, the NLRB ruled in a case involving Stanford University that graduate student research assistants are not “employees”. Instead, the Board ruled, they were “primarily students”. This decision kept college students out of unions for more than 25 years.

Then, in 2000, the NLRB held for the first time that certain New York University graduate students were employees under the NLRA. That conclusion was reversed, however, just 4 years later in a case involving Brown University.

Most recently, the NLRB went back in the direction of its NYU decision, and beyond. In 2016, the Board ruled that both graduate and undergraduate students at Columbia University could qualify for the NLRA’s protections as employees, even if their positions were externally funded.

Proposed Rule to Exclude Students from Unions

Seeking to stop the bouncing ball, the current NLRB has shifted toward rulemaking on significant labor policy issues. On the student-employee issue, the Republican Board majority takes a position that would keep students out of unions. In other words, the NLRB would not assert jurisdiction over them under the NLRA.

As an exception to standard jurisdiction over private colleges and universities, the proposed rule provides:

“Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the [NLRA].”

Comment Period

As required under federal law, the NLRB has allowed time for the public to comment on the proposed rule.

Interested parties can file comments up until December 16, 2019. In addition, comments responding to other comments can be filed until December 30, 2019.

Given these deadlines, the NLRB will not be able to issue a final rule this year. However, it is likely there will be a final rule that will keep college and university students out of unions beginning in 2020.

What This Means for Employers

If you work for a private college or university, the potential impact is somewhat apparent . . . at least in the short term. With this change, students who work for the school will not have rights under the NLRA to engage in collective activity for their mutual aid and protection. They will not be able to join unions if the employer objects. But, if the political tides shift in Washington, the rule could be eliminated or revised in the future.

For other private employers, this signals a trend toward pro-employer rulemaking by the NLRB. Generally, this is a positive sign of greater leeway to run your business. But, again, the trend could be shortlived. Employers will continue to be at the mercy of the party that controls the NLRB–generally, the one that holds the Presidency. So, you can never get too comfortable in your understanding of the NLRA’s impact on your workplace.

 

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