2013 Employment and Labor Law Legislation
The U.S. House and Senate both remain relatively unchanged from before the 2012 elections. The House of Representatives is still controlled by a (slightly smaller) Republican majority that stopped many pro-labor initiatives before. The U.S. Senate remains controlled by a (slightly larger) Democratic majority. The basically unchanged makeup of these two bodies mostly explains why the political gridlock of 2009-2012 has continued and is not likely to change at least through 2014.
However, the Obama administration’s tactics of using the Executive Branch’s regulatory powers to go around Congress, plus a possibly more aggressive attitude enabled by the President’s victory at the polls, could give new life to a number of the employment and labor bills that have languished in committee or elsewhere.
What follows is a summary of major federal and state bills and regulations that are under consideration or pending.
Employment Non-Discrimination Act (ENDA) Re-introduced (HR 1755) This bill would add sexual orientation and gender identity the list of protected classes where employment discrimination is prohibited. This legislation was previously introduced but died at the close of the last session of Congress. Both Houses of Congress will consider this bill. The bill was referred to the House Subcommittee on Workforce Protections on July 8, 2013. (@10/30/13)
Family and Medical Leave Inclusion Act Re-introduced (HR 1751) The US House and Senate will also take up legislation that allow employees to take unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent. As with the Employment Non-Discrimination Act, the bill failed to pass in the last session of Congress and had to be re-introduced. It was referred to the House Subcommittee on Worker Protections on July 8, 2013. (@10/30/13)
Working Families Flexibility Act of 2013 Introduced
Under the terms of this bill (HR 1406), as introduced by Rep. Martha Roby (R-Alabama) on April 9, 2013, workers who are entitled to get overtime pay could choose instead to receive compensatory time, and could also choose to bank it -- up to 160 hours a year. With these hours in the "bank," there would be time to care for a family member, or attend school functions, proponents say. Just like overtime compensation, which is paid at a rate of one and a half hours of pay for every hour worked, one and a half hours of time could be set aside for each overtime hour worked. And, if the workers later decide they'd rather have the money, all they have to do is ask, and the company must pay it within 30 days. After 80 hours in the bank, the company can decide to pay OT in cash, not time. HR 1406 was referred to the Senate committee on Health, Education, Labor, and Pensions on May 9,2013. (@10/30/13)
Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) have reintroduced legislation that would provide employees with a statutory right to request flexible work terms and conditions. The Flexibility for Working Families Act (H.R. 2559, S. 1248) would authorize an employee to request a change in the terms or conditions of employment relating to (1) the number of hours the employee is required to work; (2) the times when the employee is required to work or be on call for work; (3) where the employee is required to work; (4) the amount of notification the employee receives of work schedule assignments. This bill was referred to the House Subcommittee on the Constitution and Civil Justice on July 15, 2013. (@10/30/13)
The bipartisan ENDA was reintroduced in the House by Jared Polis (D-CO) and Ileana Ros-Lehtinen (R-FL) and cosponsored by 158 others. The Senate companion bill is sponsored by Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI). This bill would make it unlawful for an employer with 15 or more employees:
(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or
(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.
The bill defines "gender identity" as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth."
The bill would also prohibit employment agencies and labor organizations from discriminating against individuals on these bases, and ban retaliation against individuals who exercise their rights under this bill. The provisions would not apply to religious organizations or the armed forces, or require employers to establish hiring quotas or provide preferential treatment to employees based on their sexual orientation or gender identity.
An employer could still enforce dress or grooming standards, so long as employees who have undergone or are undergoing gender transition may follow the dress or grooming standards applicable to their intended gender.
Individuals aggrieved by the type of discrimination proscribed by this bill would be entitled to remedies afforded under Title VII of the Civil Rights Act, although only disparate treatment – and not disparate impact – claims would be recognized.
Family and Medical Leave Inclusion Act
The second measure, the Family and Medical Leave Inclusion Act (H.R. 1751, S. 846), would allow employees to take leave under the Family and Medical Leave Act (FMLA) to care for a same-sex spouse or partner and additional family members. The bill was introduced April 25, 2013 by Rep. Carolyn Maloney (D-NY). On July 8 the bill was referred to the House Subcommittee on Workforce Protections. (@10/30/13)
Paycheck Fairness Act reintroduced
Senator Barbara Mikulski (D-Md.) and Representative Rosa DeLauro (D-Conn.) reintroduced in their respective chambers the Paycheck Fairness Act (S. 84 and H.R. 377) on January 23, 2013, intended to shrink the pay gap between men and women. The bill has been introduced several times during the last few years, but the Senate failed to overcome the threat of a Republican filibuster in May 2012. On April 23 the bill was referred to the House Subcommittee on Workforce Protections. (@10/30/13)
The sponsors maintain that because women earn 77 cents for every dollar earned by a man for equal work, there must be corrective action to fix the disparity that costs both women and their families approximately $434,000 on average over the course of their careers.
Under the legislation, employers would be required to demonstrate that any disparity complained of is related to job performance and not to the gender of the employee. The legislation also would prohibit employers from retaliating against employees who communicate salary information with coworkers, and thirdly would strengthen remedies for pay discrimination by increasing compensation women can seek. This would allow them not only to seek back pay, but also punitive damages for pay discrimination.
Employee Paycheck Protection Act: (H.R. 175) stems from the recent U.S. Supreme Court case, Knox v Service Employees International Union, in which the high court ruled that public sector unions cannot compel non-members to fund the union’s political and social speech without proper notice. The bill was introduced January 4, 2013 by Rep. Tim Griffin (R-Arkansas). It was referred to the House Subcommittee on Health, Employment, Labor and Pensions on April 23, 2013. (@10/30/13)
Under the bill, unions would be required to provide so-called “Hudson” notices to all employees covered by a collective bargaining agreement, explaining how the fees are apportioned. Such notices would explain how the union calculated the share of such dues or fees that are for non-political costs related to collective bargaining. The bill would also make it clear that unions cannot require non-members to pay dues or fees unless the non-member has provided affirmative consent.
Fair Pay Act reintroduced
The Fair Pay Act of 2013 (S. 168) was introduced in the Senate by Sen. Tom Harkin (D-Iowa) on January 29, 2013. The bill would require employers to provide equal pay for jobs that are comparable in skill, effort, responsibility, and working conditions. The bill would also require employers to give their workers the information they need to determine when jobs are undervalued. The bill was referred to the Senate Committee on Health Education, Labor, and Pensions on the same day it was introduced. (@10/30/13)
Three Bills Introduced to Stop the NLRB from Conducting Business
Senators introduced bills to curtail activities of the National Labor Relations Board in light of the Appeals Court decision holding the Board has operated without a quorum since 2012. If passed, the bills would do the following:
The Advice and Consent Restoration Act would both block the pay of any board member not confirmed by the Senate and would block the board from taking any action until these appointees are legally confirmed. The bill was introduced on February 6, 2013 by Rep. Mike Kelly (R-PA) and referred to the House Subcommittee on Health, Employment, Labor and Pensions on April 23, 2013. (@10/30/13)
NLRB Freeze Act of 2013 was introduced January 30, 2013 by Sen. John Barrasso (R-Wyoming) and referred to the Senate Committee on Health, Education, Labor, and Pensions on the same day. The bill would stop the NLRB from enforcing all rules, regulations and decisions issued since January 2012. (@10/30/13)
Restoring Constitutional Balance of Powers Act of 2013 was introduced by Sen. Mike Johanns (R-NE) on January 31, 2013 and referred to the Senate Committee on Health, Education, Labor, and Pensions on the same day. The bill would prohibit the Board from enforcing or implementing decisions and regulations without a constitutionally confirmed Board or director. Under the bill, the Board would be forbidden from using funds to undertake or enforce any actions that began on January 4, 2012, the date of the recess appointments. (@10/30/13)
The Social Networking Online Protection Act (SNOPA) Reintroduced
Reintroduced on February 6, 2013 by Rep. Eliot L. Engel (D-NY), SNOPA is intended to protect the users of social networking sites from having to divulge their personal information to employers. SNOPA also protects both employees and applicants, and those facing disciplinary action from being required to give passwords or other information used to access their online accounts. The bill was referred to the House Subcommittee on Workforce Protections on April 23, 2013. (@10/30/13)
Federal Right-to-Work Bill Introduced
On January 31, Senator Rand Paul (R-Ky) introduced legislation to amend the National Labor Relations Act to prohibit the use of union security clauses in collective bargaining agreements. Under the National Right-to-Work Act (S. 204), employers across the country could no longer condition employment on the payment of union dues or fees. The bill would also amend the Railway Labor Act to the same effect. On Fbruary 4, 2013, the bill was placed on the Senate Legislative Calendar under General Orders.
On March 5th, 2013 similar legislation was introduced in the House by Rep. Steve King (R-Iowa). It was referred to the House Subcommittee on Health, Employment, Labor, and Pensions on April 23, 2013. (@10/30/13)
The Employee Free Choice Act (EFCA) - This highly controversial piece of legislation, which would have radically changed labor law if passed, was introduced in Congress in 2009 but was withdrawn in the face of a threatened filibuster by opponents of the bill. It has not been reintroduced since then. (@10/30/13)
The following information details recent employment and labor laws introduced and/or enacted in Michigan. Pending bills introduced in 2011 and 2012 have not carried over to the new state legislative session. Any legislation pending at the end of 2012 had to be re-introduced in the 2013-2014 session and start the legislative process over again.
Michigan Republican lawmakers return to prevailing wage repeal in 2013 – The Michigan House Republican caucus (which spearheaded the passage of Right-to-Work) announced its plan to pick up repeal of Michigan’s prevailing wage law. This was one of the first legislative priorities the state GOP set when it won control of the Michigan legislature and the governorship.
The prevailing wage law requires state-financed or sponsored projects for which a state agency, university, community college or school district is the contracting agent to pay workers a wage of at least the level of other construction workers in a given region.
It is estimated the prevailing wage law costs Michigan upwards of $250,000,000 each year. Organized labor sees this as a further attack on it.
Minimum Wage Increase – Following President Obama’s proposal to raise the federal minimum wage to $9/hour in his February 2013 State of the Union address, Michigan will again consider raising its minimum wage from $7.40/hr to $10/hr. S. 0203 (introduced February 3, 2013) and HBs 4386 (introduced March 7, 2013) and 4554 (introduced April 16, 2013) have not been acted on since their introduction. S. 0203 and HB 4554 would index future minimum wage increases to changes in the Consumer Price Index. (@10/30/13)
Michigan Right-to-Work (RTW) – Michigan became 24th Right-to-Work state on December 12, 2012. The law went into effect in March of 2013. (@10/30/13)
The Right-to-Work laws:
Permit employees to engage in, or refrain from, collective bargaining activities.
Prohibit an individual from being required to engage in or refrain from certain activities (such as joining or paying dues to a labor organization) as a condition of employment.
Prescribe a $500 maximum civil fine for a violation of that prohibition, and allow a person injured by a violation to bring a civil action for damages, injunctive relief, or both.
Give the State Court of Appeals exclusive jurisdiction over an action challenging the validity of this prohibition.
Prohibit a person from forcing or attempting to force anyone to engage in or refrain from certain activities (such as joining or supporting a labor organization); and prescribe a $500 maximum civil fine for a violation.
Delete the current provision making it a misdemeanor to force someone to join a labor organization or refrain from working.
Appropriate $1.0 million to the Department of Licensing and Regulatory Affairs in fiscal year 2012-13 for implementation of the amendments
Some Important Requirements of the Law
When an employee in a collective bargaining unit opts out of union membership, the employee still receives the benefits called for under the contract, including wages and benefits, the grievance procedure, and arbitration.
The union can prohibit an employee who has opted out of union membership from participating in internal union votes such as contract ratification or elections of union officers.
The union cannot charge a non-union member special fees for grievances or arbitration in the private sector. The union may or may not be subject to this prohibition in the public sector.
In general, employers have a duty to be truthful to employees about their rights under the law. However, employers risk being guilty of unfair labor practices if they attempt to solicit employees to leave the union.
Until the passage of this law, Michigan employees working in a union company were compelled to join the union and pay membership dues under either the “closed shop” or “agency shop” classification. Under either arrangement, failure to agree to pay union dues would usually lead to termination of employment.
Under RTW, dues check-offs that used to be compulsory will still be allowed but they will become voluntary. In current RTW states, dues check-offs, because they are voluntary, take on the weight of contracts between the individual and the union. One of the implications of that provision is that for a unionized employee to stop paying union dues, that employee will have to follow the de-authorization administrative requirements laid out in the check-off agreement or administered by the union. Once the employee correctly de-authorizes dues check-off, the employer will be required to stop deducting dues and remitting them to the union. Presumably, Michigan’s RTW laws will carry that same requirement.
RTW Update: A bill to repeal Right to Work was introduced shortly after the start of the new year. This bill was shelved by Senate Republicans (who hold the majority in that House) until December 28, 2013, the last day of the legislative year. This effectively killed the legislation for the remainder of 2013. (March 2013)
Lawsuits and other disputes over the passage of Michigan’s Right to Work bills continue in Michigan courts and the legislature. Several large teacher unions (including K-12 and college/university unions) negotiated and signed long-term (8-10 years) labor agreements prior to the effective date of the Right-to-Work laws (March 28, 2013). These signed agreements will forestall individual worker rights under Right-to-Work until those contracts expire. In response, the House Education Subcommittee in the (Republican-controlled) Michigan House of Representatives has reported out a bill that would withhold up to 15% of school districts’ funding if their respective teachers’ unions sign such long-term contracts between December 10, 2012 and March 28, 2013).
Michigan Workshare Law Passed - Since January 1, 2013 it has been legal for Michigan employers to set up Work-Sharing programs that will help them avoid laying off employees during downturns. The programs need to be rigidly crafted to comply with the terms of the law. But they hold out the potential not only for employers to retain key employees in anticipation of better times ahead, but also to lower their future unemployment tax rates.
On June 28, 2012 Gov. Snyder signed into law P.A. 216, U.I. Shared Work Plans. Under the law, employers facing the need to cut their labor costs can set up, subject to state approval, Work Sharing programs. For example, if the employer needs to cut labor costs by 25%, the employer can set up a work-share plan under which all eligible employees would have their hours cut by 25%, and each employee would be eligible to receive a weekly unemployment benefit equal to 25% of what that employee would receive if he or she is completely laid off. The employer would set up the plan in lieu of laying off 25% of its employees, as it likely would have to do without this option.
Employers can realize potential savings in two ways. One is that if (in the language of the bill’s summary) “federal funding for the full reimbursement of costs related to benefits paid under a shared-work (program)” are available, then “half of benefits paid would be charged to the employer’s chargeable benefits account,” and “(b)enefits paid or deposits made under this provision would not be used to calculate the employer’s contribution rate.” The other is that, to the extent that full layoffs are avoided in the future as a result of the program, the state’s Unemployment Comp fund saves money and employer’s unemployment tax rate will be lower over time.
For the affected employees themselves, their 20-week yearly eligibility for unemployment benefits in the future would remain intact, because the benefits they receive would not be charged against that eligibility. However the total benefit received would count against their maximum amount of benefit available.
There are strict requirements that employers must meet in order for their work-sharing programs to be approved for benefits by the state. They include (but are not limited to) the following:
The employer must be up to date on its account with MESA—all reports on file, all contributions and other required payments made.
The employer must have a positive reserve balance in its experience account.
The employer must have paid wages for three years prior to applying for the plan.
The potential layoffs would affect at least 15% of employees in the unit.
The employer cannot hire into the unit, or transfer into it, additional employees after the plan starts.
The employer cannot lay off affected employees once the plan starts, or reduce their hours more than agreed to at the start of the plan.
If unionized, the employer must get the approval of the bargaining unit for the plan.
The employer cannot reduce or eliminate employees’ fringe benefits during the plan.
The hour-reduction percentage must be at least 15% but no more than 45%.
In enacting its law, Michigan becomes the 24th state nationally to adopt work-sharing as an employee retention tool.
Michigan House of Representatives Passes Legislation Protecting Employee Social Media Passwords – House Bill 5523, signed by Governor Rick Snyder in December 2012, “prohibit[s] employers and educational institutions from requiring certain individuals to grant access to, allow observation of, or disclose information that allows access to or observation of personal internet accounts.”
This law prohibits Michigan employers and universities from asking prospective employees or students to reveal their private e-mail passwords or provide access to their social media accounts. The law is a response to the fact that some employers required employees and applicants to release of their private social media (e.g., Facebook, Link’d In) passwords for employer scrutiny. Violating the Social Network Account Privacy Act is a misdemeanor. In August 2012 Maryland and Illinois passed similar legislation.
Unemployment Trust Fund Solvency – Michigan was $3.2 billion in debt to the federal fund not including interest. This loan was supposed to be paid back from the solvency tax paid by employers that have a negative balance due to their employment experience. All employers pay automatic penalties imposed by the Federal government when their state is in arrears. The tax penalties increase as time goes by and until the state reimburses the Federal government. The Snyder administration initiated a corrective measure that re-finances the debt through a bond purchase. An employer assessment would pay back the bond. This would also include moving the taxable wage base for employers back to the $9,000 level previously set before year 2000. The Snyder administration made this change to its Unemployment Tax based upon the belief that Michigan could never re-pay the $3.1 billion. It is believed the bond approach would settle this debt in 8-10 years.
In December 2012, Governor Snyder signed the legislation into law.
2013 Unemployment Insurance legislative activity – On Tuesday October 29, 2013, the state of Michigan enacted several reforms for the unemployment insurance law. Public Act 146, taking immediate effect, would:
Disqualify persons seeking unemployment benefits if a prospective employer withdrew a job offer because the applicant failed a drug test required as a condition of employment, or refused to take the test; (HB 4952 PA 146)
Require cancellation of benefits as of the date a claimant intentionally made a false statement, misrepresentation or concealed material information, instead of when the Unemployment Insurance Agency receives notice of that activity (HB 4949 , PA 147)
Mandate benefits be charged to an employer's account if the employer had a pattern of failing to respond with timely or adequate information, as requested or required by the UIA, and benefits were paid due to that failure (HB 4950 , PA 142,)
Change the allocation of monies recovered by the UIA in cases of willful violations (HB 4951 , PA 153, immediate effect)
Alter some technical aspects of UIA investigations (HB 4953 , PA 144)
Make changes to the Unemployment Compensation Fund to allow for other aspects of the legislation (HB 4954 , PA 155)
All these new amendments to the unemployment compensation law took immediate effect Tuesday October 29, 2013. (@10/30/13)
The “Employment Application Fairness Act” was introduced in the Michigan House on March 5. H. 4366 would prohibit employers from eliciting information on an initial application about conviction of a felony. The prohibition expressly excludes background checks or inquiries that take place after the initial application for employment is completed, or any inquiry necessary for the employer to comply with state or federal law. The bill also provides for damages upon violation. The bill was sent to the House Commerce Committee on March 6 where it currently remains. (@10/30/13)
The “Employment Leave Uniformity Act” - On March 13, the Michigan House Commerce Committee reported out. H. 4249, known as the “Employment Leave Uniformity Act,” on an 11-7 vote. The bill provides that counties, townships, cities, and villages may not adopt or administer ordinances or policies requiring an employer to provide an employee with paid or unpaid leave that is not required by federal law. (@10/30/13)
DOL extends FMLA coverage to same sex partners: On September 18, 2013 the U.S. Department of Labor (DOL) issued a regulatory guidance confirming that same-sex married couples are entitled to the same benefits of the Family and Medical Leave Act (FMLA) as more traditional heterosexual married couples. The guidance indicates that FMLA spousal leave entitlements extend to same-sex spouses that reside in states that recognize same-sex marriages. (@10/30/13)
OFCCP issues new Disability and Veteran Regulations: The final rules were promulgated on September 24, 2013 and become effective as of March 24, 2014. These new rules establish a 7% utilization goal for individuals with disabilities (IWDs) (analyzed by job group, except for facilities under 100 which can be done by facility) and an 8% hiring benchmark for veterans.
Contractors with an AAP in place on the Final Rule’s effective date may maintain that AAP until the end of their AAP year and delay their compliance with the AAP requirements for data collection (Subpart C) until the start of their next AAP cycle. Contractors are nevertheless encouraged to begin updating their employment practices and IT systems to come into compliance with the revised requirements for data collection as soon as possible.
Therefore, for example, an organization with a January 1, 2014 plan date must begin with data collection on January 1, 2015, and include the analysis in its January 2016 AAP. If a company has an April 1, 2014 plan, data collection begins on April 1, 2014, and the analysis is included in the April 2015 AAP. Hence, organizations with a plan year beginning after April 1 must decide whether for business reasons to have a plan year before April 1, or to continue on the same plan year. By having an earlier plan year, the contractor has an additional year to collect and to conduct analysis on data.
Contractors must collect data from both applicants and its current workforce. The invitation to employees must be issued to all employees the first year that the contractor is subject to the self-identification requirement under Section 503. Then employees must be invited to self-identify every five years after the initial invitation. A contractor must also provide at least one reminder to employees within each five-year period that they may self-identify as IWDs. Before data collection can begin, though, OFCCP stated it will provide an approved form for the collection of data. Currently OFCCP has submitted an approved collection form to the Office of Management and Budget (OMB). Once approved (it will be within six months), contractors can use those forms for data collection purposes. For more information on the OFCCP regulations, click here.
National Labor Relations Board Reinstituted: The National Labor Relations Board had five confirmed members for the first time in more than a decade after the Senate took a series of votes approving a full slate of nominees in August 2013. The Board members are Democrat appointees Kent Hirozawa, Nancy Schiffer, Mark Gaston Pearce (NLRB chairman) and Republican appointees Harry I. Johnson III and Philip A. Miscimarra.
In January 2012, the U.S. Court of Appeals for the D.C. district ruled that President Obama violated the Constitution when he installed three officials onto the NLRB through recess appointments in 2012. The ruling was a blow to administration, and calls into question the long-established precedent of recess appointments, which bypass Congressional approval. The case is currently (October 2013) before the U.S. Supreme Court. The ruling was supported by two other federal Courts of Appeal in separate cases. All rulings by the NLRB subsequent to the President’s recess appointments of the three officials are regarded as being in question.
The appointment of Acting NLRB General Counsel, Lafe Solomon, was also declared invalid in a separate proceeding relying on the Circuit Court of Appeals rulings concerning the original NLRB member appointments. United States District Judge Benjamin H. Settle of the Western District of Washington dismissed the petition of Region 19 of the NLRB seeking injunctive relief pursuant to section 10(j) of the Act. In reaching that determination, Judge Settle reviewed whether the NLRB had the authority to issue the complaint underlying the request for injunction. This ruling may put a number of NLRB actions authorized by the Acting General Counsel in question. Appeal is currently (October 2013) under review.
National Labor Relations Act Poster – POSTING NOT REQUIRED.
Enacted by regulation, the National Labor Relations Board in early 2012 moved to require all employers to post a notice about employee rights to organize a union. This posting requirement is known as “Notification Of Employee Rights Under The National Labor Relations Act.”
On April 17, 2012 the D.C. (federal) Appeals Court, in response to an appeal of an adverse decision by that district’s lower federal court, issued and injunction against the NLRB posting rule. Originally scheduled for implementation April 30th, the Court’s injunction suspends the notice requirement until an appeal is heard by the Court.
On May 7, 2013 the D.C. (Federal) Appeals Court struck down the posting rule, ruling that the NLRB posting requirement overreached that agency’s authority. On June 20, 2013 the U.S. Fourth Circuit Court of Appeals also stuck down the NILRB posing rule. On August 7, 2013 the National Labor Relations Board petitioned for rehearings in both the D.C. Circuit Court of Appeals and the Fourth Circuit Court of Appeals. (@10/30/13)
Posters are out and available at the NLRB website or through ASE.
Proposed Rule Changes Impacting Employer Union Organizing Response and Elections
On June 20 and 21 of 2011 the Department of Labor and the National Labor Relation Board proposed rules changing a decades-long interpretation and application of the National Labor Relations Board. On June 20, 2011 the Department of Labor (DOL) issued proposed regulation tightening the interpretation of “advice” under the Labor-Management Reporting and Disclosure Act (LMRDA). On June 21st, the National Labor Relations Board (NLRB) issued proposed rules that it says will “streamline” the union election process.
NLRB Quickie Election Rules
On April 30, 2012 the NLRB Quickie Election Rule was promulgated. One of the NLRB’s primary duties under the law is to protect the free and fair secret ballot election to determine whether employees choose to be represented by a union or not. The new rules do the following:
Provide an NLRB hearing officer the ability to limit the evidence that could be introduced at a representation case hearing
Provide the hearing officer the authority to deny a party the right to file a brief
Eliminate a party’s right to have the NLRB review a decision by a regional director to direct an election
Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period. The amended rules call for 21 days or fewer
Eliminate a party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes
Prohibit pre-election appeals and consolidate all appeals to be heard only after the election takes place
Allow direct election appeals to the Board before an election only in “extraordinary circumstances”
The Board believes that the proposed rule amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation; that they would simplify representation-case procedures and render them more transparent and uniform across regions; eliminate unnecessary litigation and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request; and would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election.
Update (March 23, 2013): These rules are now in question due to the (federal) D.C. Court of Appeals ruling that the National Labor Relations Board initiated these rules without a legal quorum.
DOL LMRDA Rulemaking Proposal – Persuader Regulations
The DOL states that its new rulemaking allows for more transparency by requiring employers to disclose whom they are using to provide advice on influencing employees in connection with union organizing and bargaining. Currently employers are only required to disclose consultants they have hired who speak directly to employees on these matters. They are not required to file reports identifying outside consultants who are only giving advice to the employer.
Under the proposed rule, employers will have to report any arrangements with consultants that issue communications on behalf of an employer designed to “directly or indirectly persuade workers concerning their rights to organize or bargain collectively.”
This proposed disclosure requirement, the Labor Department states, also includes information about “union avoidance” seminars and conferences offered to employers by lawyers and labor consultants. This is because the Labor Department states such seminars “involve reportable persuader activity.”
ASE’s position is that both rules significantly curtail employers’ rights to communicate to and inform employees about what unionization means and how it may adversely affect them. ASE is in opposition to any restrictions or the imposition of regulations that curtail the employer’s right to maintain its business free from union influence or organization.
The Persuader Rules remain under review and are now (October 2013) scheduled to be released in November, 2013.