We are thrilled to welcome Joe Skinner to Husch Blackwell after a long tenure as Labor & Employment Counsel at FedEx. He’s picking up where he left off on the Labor & Employment team in St. Louis and shares this recent article for employers on the challenges of military leave administration under the Uniformed Services Employment and Reemployment Rights Act (USERRA). With regard to unionized workforces, provisions of collective bargaining agreements must give way to USERRA when the federal statute provides more generous employee rights and entitlements.

Read the article for information on ways to avoid mistakes and misadministration of key provisions under USERRA:

 

In episode three of the Labor Law Insider podcast, Husch Blackwell attorneys Tom Godar, David Hertel and Laura Malugade note the confirmation of Jennifer Abruzzo as General Counsel as well as two new nominations to the National Labor Relations Board which, upon confirmation, will usher in a new Democratic majority on the Board. With the new majority, employers can expect to see changes in labor laws, including laws that aid union organization efforts. In episode three of our podcast, our panel of labor law attorneys will discuss potential changes that permit unions to organize and represent small units of employees within an employer’s workforce called micro-units, and union efforts to organize remote workers.

Join us to listen to the third episode in our series, “The Biden Administration: Expected Changes at the NLRB.” In addition to discussing these potential changes, our panel offers potential strategies for employers to proactively address the anticipated changes. Alternatively, a short summary of the topics covered in the podcast is also available on our website.

 

 

On June 10, 2021 OSHA issued a Healthcare Emergency Temporary Standard (ETS) to help address the circumstances surrounding occupational hazards existing in health care during the COVID-19 pandemic. The rule was published in the  in the Federal Register and became effective on June 21. Employers must comply with most of  the requirements set forth in the ETS by July 6 of this year. According to OSHA the “ETS is necessary to protect the healthcare workers with the highest risk of contracting COVID-19 at work. Healthcare workers face a particularly elevated risk of contracting COVID-19 in settings where patients with suspected or confirmed COVID-19 receive treatment, especially those healthcare workers providing direct care to patients. “

Fundamental to the rule is the employer’s obligation to establish a plan to deal with these occupational hazards. This plan should be developed after identifying key hazards using an assessment required under the same standard. Areas that must be covered by the plan include communications with employees, application to common situs employers, screening of employees regarding COVID-19, development and  implementation of CDC guidelines consistent with limiting transmission of COVID-19, and PPE use, among many other factors.

The rule states that employers must seek the “input and involvement” of non-managerial employees and their representatives, if any, in both the hazard assessment and the development and implementation of the COVID-19 plan. For union employees, the representative is likely the union who represents the workers. The rule does not provide further definition to this “input and involvement” obligation. That is the extent of the guidance set forth in the ETS itself. The prefacing comments to the rule offers some additional guidance. Significantly, the ETS  does not use the critical word “bargain” or phrase “duty to bargain” as part of the guidelines; rather the language is more general using the phrase “must seek the input and involvement of non-managerial employees and their representatives” and “seek feedback”, etc. In fact, these prefacing remarks indicate that “in the case of the unionized workplace, a safety committee established through a collective bargaining agreement may be an appropriate source for this input based on the definition and scope of the committee’s work.”

At this point in the COVID-19 crisis, many employers have been working with their employees and, where there is a union, by and through their bargaining representatives as to most if not all the issues that are addressed in the new rule. Whether there is the duty to bargain regarding any of these topics will be very site specific to the collective bargaining relationship established at any single site. And, of course, OSHA is not the National Labor Relations Board (NLRB). It remains to be seen if and when the NLRB will weigh in on these matters. Indeed, the duty to bargain in these circumstances was addressed in our previous blog post Labor Relations Issues and COVID-19: Avoiding NLRA Violations Through Proactive Measures, and it  remains  an effective resource in reviewing the issues that may come up regarding such matters. In particular, employers should also conduct a review of their current collective bargaining agreement as to issues of waiver of any bargaining obligation, as that will be the most likely source of any defense to a failure to bargain.

Earlier this spring, in a 3-1 vote, the Board issued a notice and solicited briefs on whether to reconsider Johnnie’s Poultry doctrine (doctrine), which was established in the 1964 Board decision, Johnnie’s Poultry Co. The doctrine balances the legitimate need of the employer to question employees as part of its investigation of facts and preparation of its defense for the litigation of unfair labor charges in administrative hearings against the employees’ right to engage in protected activity or otherwise exercise their statutory rights under section 7 of the National Labor Relations Act (Act). To minimize the risk of coercive behavior levied against employees during the interviews, the doctrine establishes safeguards that limit the scope and manner of  employers’ interviews with employees. Chair McFerran, the sole Democrat on the Board, opposes reconsideration of the doctrine and dissented from the notice. Continue Reading NLRB Decision to Reconsider Johnnie’s Poultry Doctrine Remains Pending

In episode 2 of the Labor Law Insider podcast, Husch Blackwell Attorneys Tom Godar, Rufino Gaytán, and Kat Pearlstone discuss the impacts of the impending policy shift on employer policies and workplace rules regarding:

  • Employee access to IT systems for  nonwork-related communications;
  • Facially neutral workplace rules that negatively impact protected concerted activity;
  • Confidentiality obligations during internal investigations; and
  • Limitations on abusive workplace conduct.

Join us to listen to the second episode in our series, “The Biden Administration: Expected Changes at the NLRB.”  In addition to discussing these potential policy changes at the Board, Tom, Rufino and Kat offer potential strategies for employers to proactively address the expected changes. Alternatively, a short summary of the topics covered in the podcast is also available on our website.

 

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.