The rules and regulations on workplace and employee speech, interpretation and enforcement are rapidly changing. Companies must carefully factor legal and business implications into their strategy to reach the desired outcomes for their customers, workforce and brand.
In this Law360 article, Michael Sheehan, Michelle Strowhiro and Alexander Randolph examine important considerations for companies as they navigate the complexities of workplace and employee speech.
A recent National Labor Relations Board decision will likely expose a broader range of workplace rules to regulator enforcement. According to this HR Dive article, introducing even ordinary workplace rules during unionization could draw new scrutiny. However, as Christopher Foster and Marjorie C. Soto Garcia explain, there are steps employers can take to mitigate risk.
The National Labor Relations Board has changed its joint-employer rule, making it easier for entities doing business with each other to be deemed joint employers. The new rule goes further than any earlier joint-employer standard in two ways: (1) by making clear that indirect (or even unexercised) control is sufficient to prove joint-employer status, and (2) by dropping the requirement that there be enough control to permit meaningful collective bargaining. Businesses need to begin preparing for the new rule by mapping each business relationship for potential joint-employment exposure.
As we enter the last quarter of 2023, here are some of the key issues impacting employers:
1. New joint employer standard: More companies will be pulled into union organizing campaigns, contract negotiations and National Labor Relations Board (NLRB) proceedings involving their contractors when the NLRB issues a new joint employer rule.
2. Increased NLRB investigations and litigation: Union elections, activism and litigation at the NLRB are spiking. So far in 2023, there has been a 16% increase in unfair labor practice charges at the NLRB and high levels of union election petitions.
3. More aggressive union activity: More companies are facing pressure to accept terms, including adoption of union “neutrality agreements” which fast-track union organizing. There has been a 72% increase in strikes in 2023. Unions are expanding their ambitions, too. Physician groups are now targeted for major union organizing campaigns.
McDermott’s traditional labor subgroup advises companies and investors on union issues across industries in the United States and Europe. The team provides cross-disciplinary advising and works seamlessly with leading McDermott partners in employee benefits, antitrust, tax, corporate and healthcare practices, among others.
Before the 2020 election, then-US Presidential candidate Joe Biden vowed to be the “strongest labor president you have ever had.” Now having been in office for almost a year, how has President Biden changed the country’s labor environment, and what can employers expect out of his administration? In these slides, McDermott Partners Ron Holland and Kristin E. Michaels and McDermott Associate Philip Shecter provide insight into US labor activity and how the latest labor developments affect both union and nonunion employers.
As US Congressional Democrats continue their advocacy for a pro-worker agenda, multiple bills and rules could bring about sweeping changes to the civil rights and labor protections for millions of workers. These include:
According to McDermott partner Ellen Bronchetti, the PRO Act, for example, would enshrine a strict ABC test into federal law that would analyze whether workers qualify as independent contractors.
“I think that because Biden has promised to strengthen worker protections and strengthen workers’ right to organize, I think employers need to keep a real close eye on this legislation or versions of the legislation or pieces that might get pulled out and put elsewhere,” Bronchetti said in an article published in Law360.
Joe Biden’s ascendance to the presidency not only spells doom for many of the Trump administration’s business-friendly employment policies; it also may place established tenets of federal labor law on the chopping block. Biden may bring with him to the White House an ambitious pro-labor platform aimed at giving workers and unions a leg up after four years in which the Trump administration moved the legal needle sharply in employers’ direction.
A recent article in Law360, featuring McDermott partner Ron Holland, outlines four areas that labor and employment lawyers should watch after the Biden transition.
As the US election cycle begins to wind down, labor stakeholders say one thing is clear: Labor relations across the nation could see big changes under Democratic president-elect Joe Biden. In a recent article by the Daily Journal, McDermott partners Ron Holland and Chris Foster discuss the impacts a Biden presidency could have on the National Labor Relations Board and the state of labor relations in the United States.
In its first major guidance of 2016, the U.S. Department of Labor has issued a definition of joint-employer status under the Fair Labor Standards Act that is even broader than the definition of joint-employer status issued by the National Labor Relations Board last summer. Coupled with its 2015 guidance on the misclassification of independent contractors, the DOL has greatly expanded the definition both of who is an employee and who is an employer.
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