- April 2015
As we’ve noted in all our recent staff reports, the real threat facing business in the last six 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 continue to impose 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 significant new rules and regulations.
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 successfully challenged the Board’s Notice Posting rule, and their original “Ambush elections” rule, and a court case is underway challenging their second “Ambush” rule. We filed amicus briefs in other cases, including in several “Specialty Healthcare” cases in which the Board paved the way for the creation of multiple “micro” collective bargaining units in a single workplace. These actions are all in addition to our multiple challenges to the legitimacy of the “recess” appointed Board members.
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 additional detailed information on this regulatory agenda, go to:
Please see our Legal Update in these staff reports for more detail on a number of these regulatory issues.
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 defeat of the notice posting rule was a collaborative business success.
NLRB “Ambush Elections” rule to speed up union organizing elections: The Board’s first rule was promulgated in 2011; CDW and others challenged in court and the court struck down rule in 2012. The Board originally appealed the decision but subsequently asked the court to dismiss their appeal. Then, as expected, the Board promulgated a new Ambush rule in February, 2014. NAW filed comments in opposition to this new rule, and signed onto comments filed by CDW as well. The Board, largely ignoring the business community concerns, promulgated a final rule late last year. In early January CDW and coalition partners filed a challenge to the new Ambush rule in court. A second court challenge was also filed. Unfortunately the “Ambush” rule took effect on April 14th, before the two cases in court had been decided. Not surprisingly, 14 union petitions for election were filed the same day the “Ambush” rule took effect, and more than 20 additional petitions were filed in the next two days.
Affirmative action: The Office of Federal Contract Compliance Programs (OFCCP) has issued new regulations requiring contractors to set affirmative action hiring goals for the disabled.
Protected concerted activity: 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, improper behavior, and disrespectful conduct. In late December, the Board found that the posting of a company policy against workplace violence interfered with employee rights.
Micro Bargaining units: 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.
“Blacklisting” Executive Order: Last July, President Obama issued an executive order requiring most federal contractors to disclose previous citations under more than a dozen separate labor laws to the government both before and after being awarded government contracts. When the regulations implementing this “blacklisting” executive order are final, they will almost certainly be challenged in court.
Joint Employer Standard: Last July the NLRB General Counsel issued a decision reversing decades of precedent defining what a “joint employer” is for purposes of union organizing; in this case determining that McDonalds and its franchisees are joint employers. In December the General Counsel followed up by issuing 13 complaints against McDonalds for the employment decisions of franchisees. This “joint employer” decision will have far-reaching impact outside the franchise industry; in fact, the original decision involved not a franchise entity but a recycling company (Browning-Ferris) which hired a firm (Leadpoint) that supplies workers at recycling plants.
Access to employer email system: In December, 2014, the Board issued a decision (Purple Communications), finding that employees have a right under the National Labor Relations Act to use their employer’s email system for organizing purposes absent a showing by the employer of special circumstances.
Fair Labor Standards Act: The Wage and Hour Division is expected to issue new regulations under the Fair Labor Standard Acts, specifically addressing the “white collar” exemptions from the overtime payment requirement. There is concern in the business community that the statutory exemption for “outside sales” could be threatened under a new rulemaking (while there is little hope that the outdated “inside sales” issue will be addressed). A new coalition was formed to oppose these new regulations if our expectations about them are realized; NAW serves on the Management Committee of the new Coalition.