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Employment and labor law changes finally on the horizon?

September 21, 2017

By Michael Burns, courtesy of SBAM Approved Partner ASE

Some political activity may finally be taking shape on the employment and labor front. In addition to the slow pace of appointments in the Department of Labor (DOL) and the National Labor Relations Board (NLRB), legislation intended to turn back the Obama Administration’s regulatory overreach seem to be moving forward. 

Some of bills currently being proposed include:

Employee Rights Act
This bill’s intent is to change the National Labor Relations Act (NLRA) to undue the DOL’s Quickie Election rules implemented in 2015. The bill would also restrict union access to worker contact information. Currently, worker phone numbers and email addresses must be provided under NLRB rules. The Employee Rights Act goes further in its purpose of checking unions by requiring a new representation vote if the employer has had over 50% employment turnover in the bargaining unit.  It also does away with authorization cards in favor of a secret-ballot vote, and employees would have to affirmatively opt in for union dues payments over and above the basic cost of collective bargaining. 

Though passage as outlined above is considered a long shot, the ultimate goal of changing some things in the nearly 80-year old NLRA may push parts of this legislation through.

Workforce Democracy and Fairness Act
This piece of legislation was just introduced in July by Michigan’s own Representative Tim Walberg, I- Mich. It is a narrower crafted bill than the Employee Rights Act legislation, but would also undo the Quickie (or also called “Ambush”) election rules. This law would expand the time between petition filing and the union election to 35 days.

This bill also would re-dress the NLRB’s ruling that allows smaller groups of workers within an employer to organize into a bargaining unit. 

Save Local Business Act
This legislation also seeks to return to established law. The Obama Administration’s NLRB re-defined  and expanded joint employer responsibility making two employers liable for the employment actions of what was once clearly the responsibility of one. The Obama NLRB found joint employer responsibility for breach of labor law thereby completely blurring the lines for employers when engaging outside contractors for service or production needs. 

This legislation, which is reported as having a good chance of passing would amend the NLRB and the Fair Labor Standards Act (FLSA) to “codify the direct control standard.” (Law360 5 Labor and Employment Bills to Watch, 9/12/2017)  This would correct the confusing overreach the NLRB caused in its now infamous Browning-Ferris decision.

National Right-to Work Act
Continuing the march against compulsory union dues, that 25 individual states have adopted, this legislations would implement Right-to-Work federally. Right-to-Work laws prohibit unions and employers from including mandatory dues provisions in labor contracts and allow workers to opt out of the union. 

The prognosis for this legislation is bleak, but that is what they said in Michigan before its Right-to-Work law passed.

Raise the Wage Act
This legislation seeks to raise the entire country’s minimum wage to $15/hour. Introduced by the Democrats in May of this year it faces big obstacles with the Republican controlled Congress and Executive office. States have taken up the issue of passing minimum wage raises across the country. Given the differing economies in regions across the country, allowing states to determine what their minimum wage should be allows for more controlled wage changes that don’t create more problems than they are intended to solve.

Amending the NLRA at this point would curtail further regulatory law making. 

One other development that seems to be a holdover from the pro-labor Obama NLRB is that the NLRLB continues to extend its control over non-union employers. The NLRB General Counsel continues to pursue its position that non-union workers have the right to have outside representatives present during investigations. The General Counsel’s office issued an advice memo that held that two cases involving non-union employees requesting outside representation during a disciplinary investigation should have been allowed to have it. The General Electric Company cases will be up for review in the new Trump NLRB.

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