Tag Archives: Obama

A Clue to the NLRB’s Future Focus?

In regulatory action last week, the current board of the National Labor Relations Board not-so-subtly identified several areas where the Board wants to reverse course. Specifically, on October 16, 2018, the Board’s General Counsel released four advice memorandums issued during the Obama administration addressing several topics, including dress codes, replacement of striking employees, and video recordings of workplace strikes.

It is uncommon for advice memos to be released, especially those from prior administrations.  Most times, such releases happen after a matter has been resolved or the General Counsel has directed a region to dismiss a case. When memos are released, it is because the Board wants to draw attention to a trending topic or point of emphasis. In this instance, the Board released advice memos that were quite favorable to labor unions and workers:

  • In two advice memos involving Walmart dating to 2013, the Board’s General Counsel at that time recommended that the regional director bring unfair labor practices when the retailer (1) told a plainclothes security guard that he could not wear union clothing while undercover; and (2) prohibited workers from wearing union insignia shirts and then disciplined them for engaging in a work stoppage (which the General Counsel opined was not an unprotected sit-in strike);
  • In a different 2013 memo, the General Counsel found that Boeing acted unlawfully when it recorded union solidarity marches that happened on its property while it also had a rule in its employee handbook that blocked employees from using cameras on its property; and
  • In another advice memo issued in early 2017, the then-General Counsel concluded a California fishery committed an unfair labor practice when it unlawfully replaced striking employees by giving temporary employees permanent positions.

These memos are noteworthy since the current General Counsel, Peter Robb, and the Board at large are unlikely to support the positions espoused in the Obama era memos. For instance, in December 2017, the Board has changed course in the Boeing matter, concluding that the Board’s previous edicts on handbooks gave too much credence to employees’ rights and too little to employers’ interests.

Considering the reversal in Boeing matter, the fact that the General Counsel released the other advice memos on the same day potentially signals those advice memos do not reflect the Trump-era General Counsel or Board’s position. For that reason, employers may wish to challenge similar unfair labor practice findings in other settings.

Still, although these advice memos may be a relic of the Obama-era Board, another administration’s Board could renew the legal theories and positions contained in the advice memos. Thus, at the very least, employers should remain mindful of the views taken in the advice memos and consider potential protective steps.

John Getty*
jgetty@williamsparker.com
(941) 329-6622
*Admitted in Louisiana and Georgia

Predicting the Unpredictable: Labor and Employment Law in 2017

This post is part one of a two-part series.

Since Santa did not leave the Wicked Witch of the West’s crystal ball under my tree, Emmett Lathrup “Doc” Brown’s DeLorean parked outside my house, or provide me with access to Bill and Ted’s telephone booth, I am unable say with certainty what 2017 will hold for employers. However, I am confident that several labor and employment issues will take, or remain, on center stage, as the President-Elect has indicated that once he takes office, he plans to repeal many of the executive orders and regulations implemented by the Obama administration that businesses have generally criticized as burdensome. Further, two nominations for leadership positions made by the President-Elect that will influence the employment arena are the nominations of Jeff Sessions to lead the Department of Justice and Andrew Puzder to lead the Department of Labor.

Jeff Sessions is known for taking positions contrary to those advocated by civil rights organizations, especially those supporting LGBT rights, and he is on record opposing the legalization of marijuana. This will be interesting because under the Obama administration the DOJ has been actively working to expand LGBT rights (think North Carolina), and has not been actively enforcing federal marijuana prohibitions in states where the drug is legal (think Colorado).

As for Andrew Puzder, he is an executive whose businesses have been investigated for wage and hour violations by the DOL. He is on record stating that American workers are overprotected. He is generally opposed to minimum wage increases, and he finds paid sick leave requirements burdensome. As Secretary of Labor, Puzder will be responsible for the agency that enforces many of the employment laws that businesses deal with on a regular basis, including the FLSA, the FMLA and OSHA.

If these two nominations are confirmed by the Senate and their past statements are indicative of how they will manage their agencies, businesses may see regulations curtailed and less aggressive enforcement of employment laws. As a business owner, such changes may equate to fewer regulations, less time dedicated to dealing with government agency investigations, and possibly lower labor expenses.

If some predictions on how Sessions and Puzder will lead their agencies under a Trump presidency come to pass, worker protections may be greatly diminished. If protections are impacted to the extent that workers feel that neither their employers nor their government has their best interests in mind, they may seek advocates to assist in improving the terms and conditions of employment. Think Sally Field in her Oscar willing performance in Norma Rae. If employees seek to unionize, the result may be more burdensome for employers than the existing regulatory framework.

Only time will tell how the new administration will impact the labor and employment arena. If employee protections do begin to decline, employers that value employees and treat them well are less likely to see the involvement of outside advocates.

Part two of this post will specifically address several of the issues mentioned above, including the DOL’s overtime regulations and Florida’s Medical Marijuana Law. Stay tuned.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558