The Latest on Labor Reform

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While most of the sessions I attended on Monday focused on the changing workplace and how businesses can adapt, my first Tuesday session had a different flavor.

“Understanding Labor Reform’s Newest Front Lines” was led by Philip Miscimarra, a partner at a Chicago law firm. He represents clients on a wide range of labor and employment issues, with a focus on traditional labor matters and employment litigation.

Miscimarra discussed how employers are facing a resurgence in labor-law reform efforts on multiple fronts. These efforts have been initiated by the National Labor Relations Board, an independent agency of the U.S. government that conducts elections and investigates unfair labor practices. Miscimarra’s goal was to help the audience understand the implications of these reforms and navigate this new pro-labor environment.

Miscimarra first addressed the National Labor Relations Board’s Notice Posting rule. This would require private sector employers to post a notice advising employees of their rights under the National Labor Relations Act.  Earlier this year, the U.S. District Court of South Carolina invalidated this rule, which had been scheduled to take effect on April 30.  An appeal is in process, and a resolution is expected at the end of this year.

Next, Miscimarra discussed the prospects of faster labor-union elections. The National Labor Relations Board has proposed rules that allow union elections to be held more quickly once an organizing petition is filed. This move would give employers less time to respond to employee organizing.

The reason for the established time-frame, argued Miscimarra, is to ensure that employees understand the issues at hand. But this shortened time frame “reduces the opportunity for people to understand what they need to know,” he added.

Miscimarra then turned his attention to micro-bargaining efforts. Last year, the NLRB allowed unions to bring together a small group of employees for the purpose of organizing a mini-union. These smaller groups within an organization could lead to chaos as employers would have a tough time managing their workforce.

Employers “would have to deal with small groups each representing a different issue within the same company,” he said. “It would be a sweeping change, taking some of these changes together.”

Discussions about social-media policies have been ubiquitous at SHRM, and Miscimarra addressed them as well. He pointed out that the NLRB treats social media complaints similarly to striking employees complaining about companies in the 1930s. He shared some new guidance on what the NLRB deemed unlawful as of May 30th:

  • Restriction on “non-public information” or “friending co-workers”
  • Restriction on posting “photos, music, videos and the quotes and personal information of others”
  • Statement to “adopt a friendly tone” and “Don’t pick fights”

Another matter is a proposed change to the Labor-Management Reporting and Disclosure Act of 1959 governing “persuaders,” which are third-party labor attorneys or consultants hired to help companies respond to union activity. At present, employers do not have to report any type of labor law counsel they receive from outside attorneys. But this new proposal would expand the scope of what they’d need to report to the Department of Labor.

The implications, Miscimarra said, are significant. This new rule would mean that lawyers would have to disclose not only the work they do for the client in question but also details about any labor-related services they offer to all of their clients. It would dissuade many lawyers from taking on clients that need this counsel, which would particularly hurt small businesses unable to afford in-house counsel.

Miscimarra concluded his discussion by saying that these labor reforms, many of which are still pending, are significant and that employers need to be acutely aware of this new environment.  “What we have seen over the past 18 months has been remarkable,” he said, “Most of these [reforms] have been pro-union, pro-labor.”

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