- October 2013
As we’ve noted in all our recent staff reports, the real threat facing business in the last four years – and certain to continue – has not been legislation, but regulation. The Obama Administration’s executive departments and agencies moved aggressively to reverse the free market policies of the previous Administration, and have imposed burdensome, costly, time consuming and pro-union regulations on business at all levels and in all industries. Virtually all of the Federal departments and agencies promulgated new rules and regulations, many of them spawned by the banking and health care reform bills passed by Congress in 2010.
The most active—and those with the most immediate impact on the workplace – are OHSA, EBSA, W&D, OFCCP, FLSA, OLMS … the whole alphabet soup of regulatory agencies within the Department of Labor (DoL). And, even more threatening to business, the National Labor Relations Board (NLRB) continues to pursue its rule-making and aggressive case law agenda.
In response to the regulatory threat in the labor area, the Coalition for a Democratic Workplace (CDW) – the business coalition organized to oppose card check legislation which NAW helps manage – has committed extensive time and resources to fighting the regulations and NLRB case decisions that threaten employers’ ability to manage their own places of business. To increase our effectiveness, the coalition retained labor counsel to follow the regulatory agenda and coordinate the filing of comments and amicus briefs in response to agency rulemaking and to take our case for regulatory restraint to court.
We have successfully challenged the Board’s signature rule-making – “Ambush elections” and the notice posting. We have filed amicus briefs in other cases, including the “Specialty Healthcare” case in which the Board paved the way for the creation of multiple “micro” collective bargaining units in single workplace. These actions are all in addition to our multiple challenges to the legitimacy of the “recess” appointed Board members. We anticipate at least one Labor Department Rule further facilitating union organizing that we would immediately challenge in court.
NAW and many of our member associations have lent their names to these briefs and comments, and we will continue to do so through the next year.
While the complete list of regulations is too long to cover in this report, a brief listing of some of the most troubling of the on-going and proposed rule-makings and case decisions of DoL and the NLRB follows. And to access a detailed PowerPoint presentation on this regulatory agenda, go to:
NLRB Rule requiring employers to post a Notice of Employee Rights Under the National Labor Relations Act: CDW and others successfully challenged in court and both the DC and 4th circuit appellate courts struck down the rule, one ruling that the rule violated the constitutional free speech clause by compelling speech by business, and the other ruling that the NLRB lacked the statutory authority to require the notice postings. The NLRB has not yet indicated whether they will appeal the decisions, but with two circuit courts ruling against them, it is far from certain that the Supreme Court would agree to hear the case.
NLRB “Ambush Elections” rule to speed up union organizing elections, curtail employer rights in the collective bargaining process and increase union membership: CDW and others challenged in court, the court struck down the rule and the case is currently on appeal. However, the case has now been held in abeyance pending Supreme Court action on the Noel Canning NLRB recess appointment case (see separate Staff Report on Labor and the NLRB).
The Office of Federal Contract Compliance Programs (OFCCP) has just issued new regulations requiring contractors to set affirmative action hiring goals for the disabled.
The NLRB has issued a number of decisions on the right of employees to comment negatively on their employers on Social Media as protected “concerted activity,” in response to which employers should review their social media policies – or implement one if needed.
The NLRB continues to reach into non-union workplaces through additional expansion of “protected concerted activity”, which they have now ruled applies to issues involving arbitration agreements, confidentially requirements during internal employee investigations, “at will” employment agreements, and improper behavior.
The NLRB continues to apply their “Specialty Healthcare” decision regarding what constitutes an appropriate collective bargaining unit to other companies and industries, and several companies have challenged these decisions in Federal court.
We are still anticipating the release by the Department of Labor of their Persuader Agreement rule, limiting the right and ability of employers to seek and obtain legal counsel during a union organizing campaign.