On June 1, 2021, in a 5-2 decision, the Missouri Supreme Court sitting en banc affirmed a circuit court decision that voided in its entirety HB 1413, which was enacted by the Missouri legislature in 2018 and sought to change collective bargaining laws for public-sector labor organizations in the state of Missouri. We previously discussed the circuit court’s decision in our December 14, 2020 post, Missouri Supreme Court to Decide Constitutionality of Public Reform Law. While the circuit court decision permanently enjoined the Missouri State Board of Mediation and Missouri Department of Labor and Industrial Relations from implementing and enforcing the law, the law was not void with respect to entities that were not parties to the litigation—until the Missouri Supreme Court released its decision. As of June 1, 2020, HB 1413 is void in its entirety with respect to all entities in Missouri. Continue Reading Missouri Supreme Court Voids 2018 Missouri Public Reform Law

In this week’s edition of our “Funny You Should Ask” series, Tom Godar and Terry Potter discuss whether there’s a need to bargain before imposing a mandate that employees are fully  vaccinated against COVID-19 before reporting to work: https://www.healthcarelawinsights.com/2021/05/funny-you-should-ask-is-a-vaccine-mandate-subject-of-bargaining/

It’s become increasingly common for businesses to subcontract workers to perform jobs at a location that is shared with the business or other neutral third parties. When picketing at common job sites shared by the employees of the contractor/employer and the neutral third party, the right of subcontracted employees to engage in collective action at a shared job site must be reconciled with the prohibition on secondary picketing against neutral third parties under the National Labor Relations Act (NLRA). In Service Employees International Union Local 87 v. NLRB (Service Employees International), the Ninth Circuit held that the Board erred in concluding that picketing constituted unlawful secondary picketing where the picketing activity at a shared job site clearly identified the primary employer as the target of the picketing and did not direct coercive activity against neutral third parties. Continue Reading Ninth Circuit Construes Secondary Picketing in Context of Shared Job Site

Given President Joe Biden’s commitment to strengthening labor laws on behalf of workers, the Husch Blackwell Labor & Employment group anticipates dramatic shifts in labor law interpretation. As a result, we’ve launched a new series, The Labor Law Insider Podcast where our group will discuss the changes that we expect to occur under the Biden Administration and strategies that employers should adopt in anticipation of these changes to avoid unnecessary disruptions to business operations.

Whether or not you have a unionized workforce, join us to listen to the first episode in our series, “ The Biden Administration: Expected Changes at the NLRB where we discuss how the changes in NLRB leadership will likely affect employers and the workplace.

We will re-convene regularly, once each month, with members of the Husch Blackwell Labor & Employment practice group to continue discussions on timely and relevant topics to employers. We will provide these updates in both written and audio format, and we encourage you to subscribe to our various labor and employment law mailing lists.

Key Points:

  • The Western District of the Missouri Court of Appeals upheld a narrow portion of section 110.010.B.4(a) of the University of Missouri System Rules and Regulations that prohibits employees or students from possessing or discharging firearms, weapons, and explosives on University property.
  • However, the University cannot prohibit employees from possessing a firearm that is not visible inside a locked vehicle parked on University property, because it conflicts with and is preempted by section 571.030.6 of the Missouri Revised Statutes.

Continue Reading Court Upholds Narrow University Rule to Reduce Firearm Crime

The Protecting the Right to Organize (PRO Act) (H.R. 842) is a sweeping effort to amend longstanding labor laws to facilitate union and employee organizing efforts. The union-friendly legislation would make the most significant modifications to the National Labor Relations Act since the Taft-Hartley Act restricted union power in 1947. The proposed changes would give workers and unions more power in disputes at work, add monetary penalties for companies that retaliate against workers who organize and expand collective bargaining rights for many workers.  The PRO Act would also weaken “right-to-work” laws in more than half of the states that give employees the right to choose not to join or pay dues to unions.

These efforts to tip the balance in favor of union organizing are not new. We have seen many of these proposed changes show up in past legislative efforts. Similar changes were part of the Employee Free Choice Act introduced before the election of, and supported by, President Obama. The PRO Act passed the Democratic controlled House last year but was never taken up by the then GOP majority Senate. This year the Democrats narrowly control the Senate, but not by enough votes to overcome a filibuster, which ordinarily means that the measure is likely dead again.

Below is a summary of a several provisions of the PRO Act:

Continue Reading The PRO Act – A Wish List For Revival of Unions

Hospitals and non-acute care settings beware: Micro-Units are about to make their way back into Healthcare Union organizing. Over the coming months, we can expect to see many significant changes to labor issues affecting healthcare and other sectors of our marketplace. The National Labor Relations Board (“NLRB”) is almost certain to reinstate the standards of what constitutes an appropriate bargaining unit as set forth in a 2011 case, Specialty Healthcare, allowing unions to target smaller groups of employees to organize. This case has encouraged Union organizing of Micro-Units in various settings, especially healthcare. The Board had overruled that decision in 2017, PCC Structurals, Inc., and returned to “community of interest” analysis which reviewed whether the unit employees “share a community of interest sufficiently distinct from the interest of employees excluded from the petition-for group to warrant finding that the purposed group constitutes as separate bargaining unit.” Continue Reading Micro-Units Are Back in Healthcare Union Organizing

 

The saga of Scabby the Rat continues with the transition of the Biden administration and the recent unceremonious ouster of now-former General Counsel Robb. The debate focuses on whether the presence of Scabby, the large inflatable rat, and large banners at the site of a neutral secondary employer constitute lawful secondary protest activity or is unlawful picketing or coercive conduct. Continue Reading The Nine Lives of Scabby the Rat

On November 16, 2020, the Missouri Supreme Court heard oral arguments in the case of Missouri National Education Association, et al. v. Missouri Department of Labor and Industrial Relations, et al., Ferguson-Florissant School District, et al, challenging a circuit court ruling that House Bill 1413 (HB 1413), a public labor union reform law, is unconstitutional in its entirety. The circuit court held that the 2018 law unlawfully discriminates against certain public labor unions representing first responder personnel and infringes on public employees’ fundamental rights to bargain collectively and to choose their own representative, as well as certain First Amendment and equal protection rights. Upon concluding that the unconstitutional provisions dominate “the entirety of the legislative intent to undermine the plaintiff’s fundamental rights,” the circuit court enjoined the Missouri Department of Labor and Industrial Relations and the Missouri State Board of Mediation (SBM) from implementing and enforcing the provisions of HB 1413. On appeal, the Defendants assert that the right to bargain collectively is not a constitutionally protected fundamental right and deny that the restrictions imposed by HB 1413 abridge public employees’ constitutional rights. Continue Reading Missouri Supreme Court to Decide Constitutionality of Public Labor Reform Law

 

As the 2020 general election approaches with many employees working remotely and participating on social media platforms, employers can anticipate that employees will engage in political speech and activity in the workplace. Political speech includes a wide spectrum of activities beyond communicating by written or spoken words on a political topic. Other forms of expression that constitute political speech include wearing clothing or other accoutrements endorsing or opposing a person, party or issue; engaging in symbolic speech such as participating in demonstrations; contributing to campaigns; handing out campaign literature; and at least one court has held that “liking” a post on Facebook is political speech. This election year, acrimonious partisan politics, a global pandemic, and economic and social issues that have impacted nearly every worker have generated strong opinions about candidates and issues. Opinions expressed in this highly politicized atmosphere though, can undermine worker productivity or even result in claims of harassment, discrimination, retaliation or a hostile work environment.

As a result, employers face the complicated legal and practical issue of lawfully regulating speech in the workplace to ensure that the workforce remains productive and respectful of the rights and differences of co-workers. Maintaining a productive and harmonious workforce requires that employers understand the limits on their right to regulate or impose rules that limit political speech and expression in the workplace and enforce the rules in a lawful manner. The nature of the lawful restrictions that an employer can impose depends on the designation of the employer as either a public-sector or private-sector employer. While this post will discuss restrictions on both types of employers, the main focus is on the right of private-sector employers to limit political activity in the workplace. Continue Reading Understanding Employers’ Right to Impose Limits on Political Activities in the Workplace