My law partner, Gabe Jiran, talks today about whether it’s all that easy to change the terms of a collective bargaining agreement.  Is it just as easy as a vote? Or does it require something more? The answer has implications for all employers.  

With all of the talk about the financial difficulties faced by the government, I, and others in here, sometimes get the question of whether the State of Connecticut or other states might try to change the laws on collective bargaining or try to pass legislation to alter the terms of its existing collective bargaining agreements.

Other states have started down this road, but it is not that easy.

Recently, the Connecticut Attorney General was asked to opine on whether the General Assembly could statutorily change the contracts covering State employees to address the fiscal crisis.  A link to the opinion is here.

The short answer is that the State could do so, such as by passing a statute that wage increases be delayed or eliminated in State contracts.

However, the United States Constitution imposes a pretty heavy burden on the State to justify any such changes.

The relevant factors are:

  1. the severity of the fiscal crisis;
  2. the nature and duration of the contractual changes;
  3. the extent that the State has attempted to implement other alternatives in the past;
  4. the extent to which the State has studied and made findings about the feasibility of other alternatives;
  5. whether these alternatives would be a less dramatic option;
  6. the extent to which the fiscal crisis existed or was foreseeable when the State entered into the existing contract; and
  7. the State’s representations during negotiations for the existing contract.

Based on cases utilizing some or all of these factors, the State would face an uphill battle if it wanted to change an existing contract.

For example, a federal appeals court struck down the State of New York’s plan to delay wage increases for employees because New York had alternatives such as raising taxes or shifting money around in its budget.  In another New York case, the same court found that a $1 billion deficit was not a dire enough fiscal crisis to justify a delayed wage increase.

However, one case found that the City of Buffalo was able to impose a wage freeze when it was undeniable that Buffalo was in a fiscal emergency and that the wage freeze was a last resort after looking at other options.

In discussing the matters with others here, we expect that Connecticut and other states will continue to look for creative options to address their financial situations with employees.

However, it is doubtful that these options will involve changes to existing contracts without negotiation with the unions involved.  In addition, any State attempts to change contracts in the private sector would be almost certain to fail.

file101235857424For the last six years, you haven’t seen much on this blog about changes to federal employment laws because, well, there just weren’t any.  What we DID see, however, were changes to regulations and enforcement orders.

Nearly six months into the new Trump administration, we’re now starting to see significant shifts in the federal regulatory scheme too.

A lot of national employment law blogs have been starting to recap them so I’m not going to go too in depth here. Among the changes? A death-knell to the persuader rule, and, earlier this month, a pullback of guidance on joint employment and independent contractor rules.   And it looks like the overtime rule changes are still in limbo as well, with the DOL “rethinking” such rules in news articles this week.

You don’t need to have a law degree to understand that these changes will favor companies.

Last night too, the Trump administration named the final member of a new National Labor Relations Board who will, no doubt, start rolling back other labor law decisions that have favored employees and labor unions as well.

But what will the impact be in Connecticut?

It’s still a bit early to tell, but I think the impact may be muted in some ways. After all, we have a CONNECTICUT Department of Labor that still marches to its own drum.  For example, it has taken a pretty aggressive view on who is (or is not) an employee vs. an independent contractor.

Indeed, as I’ve discussed before, the Obama-era rule changes might have, in fact, helped level the playing field for some Connecticut employers who have felt that they have had to comply with stricter Connecticut rules which made them less competitive nationwide.  With the rollback of some of these rules at the federal level, Connecticut’s higher standards may come back into play more often.

That may be overstating it a bit, but Connecticut employers will have to play catchup to figure out the patchwork of federal and state regulations and the interplay between them.

Perhaps it is more fair to say that things are still shaking out this year for Connecticut employers.  The General Assembly session that just ended was more quiet than most.  But at a national level, employers shouldn’t be too quick to make too many changes because there seems to be many more aspects in flux than in years past.

The only thing I’ll predict for the next six months is that we have all the ingredients in place for a wild roller coaster ride with more changes than we’ve seen in some time.

So buckle up.   Things are just getting interesting.

starrMy colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not.

There are outer limits to insulting speech, but a recent decision seems to indicate that it is really really far out there.

The questions up for consideration: When can an employer fire an employee for profanity during a union organizing drive?  When does the employee who stoops to insult not only his supervisor, but his mother, lost the protection of the National Labor Relations Act?

The Second Circuit faced these questions and provided a glimmer of hope for employers.

During the course of a nasty union organizing drive at a catering company, an employee became very upset at what he considered the employer’s continued disrespect for the employees.

In response, Perez used his iPhone during a work break to post the following:  “Bob [his supervisor] is such a NASTY MOTHER F****R don’t know how to talk to people!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”

Perez had about ten other employees as friends on Facebook, but the post was also available to the public. Management learned of the post, investigated, and then fired Perez, just days before the election.

An administrative law judge found that the firing violated the law as Perez was engaged in protected, concerted activities.  This decision was upheld by the NLRB.  The case was then appealed to the Second Circuit.

At the court, the question was whether the post exceeded the bounds of protection by using profanity and insulting the supervisor’s mother.

While the Court in NLRB v. Pier Sixty was disturbed by the language and by the Labor Board’s failure to adequately take into account the employer’s interests in assessing how to evaluate a social media posts, it nonetheless, found a violation of labor law by the employer.

The Court noted that the employer had not disciplined many others for profanity in the past, even though profanity was a common occurrence in the kitchen,  that the language was not used at a catered event or in front of customers, that the message focused on matters that are protected, concerns about respect, that the message concluded by urging readers to vote for the union, and that the discharge occurred two days before the voting.

While the Second Circuit upheld the Labor Board’s decision, it sent a message that these facts are on the “outer-bounds of protected, union-related comments.”   It cautioned the Labor Board that it needed to be sensitive to employers’ legitimate disciplinary interests and to properly balance the competing interests of employees, unions and employers.

The facts in this case presented the court with hurdles it could not get over.  Profanity was common in the workplace, employees had not been disciplined for using profanity in the past, and the incident was almost on the eve of the union vote.  The employer was unable to show that the posting online had harmed its business.  But in another context, using union organizing as a shield to insult supervisors’ mothers may not work.

trumpphotoThere haven’t been a lot of stories about what Donald Trump would do as President when it comes to employment law issues. In part, that was due to the polls. But it was also due in part to the lack of policy details that his campaign put out on his website.  Back in September, I lamented the fact that we weren’t getting to hear any debate on those issues.

So, the news this morning that Donald Trump has been elected President is coming with a bit of scrambling.  What does it mean for employers in Connecticut? What’s going to happen with employment laws and enforcement?

The truth is that we really don’t know at this point.  The fact that the House, Senate and President will all be led by Republicans is something that is going to throw the whole system for a loop.

So, here are a few things to keep an eye on over the upcoming months when it comes to employment law issues:

  • As I noted last month, the new overtime regulations are set to be implemented on December 1, 2016.  Will a lame-duck Congress try to block those rules from being implemented? And if they are still implemented, will a Trump adminstration seek to roll those back? That would be a challenge.  Suffice to say for employers, this added uncertainty is a real headache. Until you hear otherwise, employers should continue to implement these changes.
  • One thing that seems clearer: The NLRB’s moves over the last few years will come to a screeching halt once the Board’s makeup is changed. The NLRB, for better or worse, always seems to change with each Presidency.  A Trump Presidency will no doubt bring changes back; this may impact everything from graduate assistants being able to unionize, the quickie election rules. Everything is in play.
  • For those wondering, the Board has two seats open now; along with the existing Republican member, that would give the Trump presidency a pretty quick majority.
  • The EEOC’s strategic plans will now be called into question as well. In recent years, it has taken aggressive litigation approaches on sexual orientation and gender identity issues. Will those tactics be abandoned? Where will the enforcement priorities lead to? Again, don’t expect big changes overnight but over time, this is definitely something to watch.
  • And do not underestimate the impact that a Trump Presidency will have on the federal court system.  He will now be appointing far different judges that we’ve seen over the last eight years — both at the U.S. Supreme Court and at lower court levels.  This will have a long-term effect on employment discrimination cases which are often heard in the federal courts in Connecticut.  As a result, we may continue to see more cases being brought in Connecticut state courts.
  • Let’s not forget that Trump also suggested a six-week paid maternity leave program.  Will we see Congress pick this issue up? Stay tuned too.  

For Connecticut employers, lost in the headlines of a Trump presidency is the fact that Republicans seem to have gained an unprecedented 18-18 split in the State Senate. This could potentially put the brakes on legislation the next two years on issues like non-competes or expanded paid leave.  It’s too early to tell but this is something we’ll be looking into as well.

But for all the uncertainty out there, remember this: Many of our federal laws are unlikely to change.  ADA, FMLA, Title VII are all fairly hearty laws that share widespread support.  The changes that may come are all things around the edges — things like enforcement approaches, guidances, etc.

For employers, it’s best to keep a close eye on the developments for employment law. It’s going to be an interesting couple of years.

Lucan_J_WebMy colleague Jarad Lucan returns today with an update on a post regarding the impact that recent labor law decisions are having on colleges and universities.

Two years ago, my colleagues and I reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the right to unionize.

The Regional Director in that case determined that the players were employees under the National Labor Relations Act (the “NLRA”) and therefore could vote to be represented by a Union in connections with negotiating terms and conditions of employment with the University.

Ultimately, the Board refused to exercise jurisdiction over the players  and therefore left open whether they are employees under the NLRA or not.

At the time we reported on the case,  we discussed some of the impacts of the decision beyond the ability of players to unionize, including that the Board may scrutinize the University’s policies to see if those policies complied with the NLRA.

More specifically, whether the policies were written in a way that would either expressly or implicitly prevent the players from engaging in protected concerted activity.

Apparently, someone did challenge the “Football Handbook” and on September 22, 2016, The Board’s Office for the General Counsel issued an advice memorandum related to that charge advising against the issuance of a complaint.

The memorandum assumed that the football players were employees, and indicated that:

[i]t would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.

According to the memorandum, Northwestern modified its handbook pertaining to social media use striking portions of the rules, in most cases replacing with new language.

In particular, Northwestern took out language barring student-athletes from posting things online that “could embarrass you, your family, your team, the Athletics Department or Northwestern University.”

The new text is more specific, telling the athletes not to post things that “contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.”

The memorandum also pointed to changes with the University’s rules on disclosing injury information, which had told players to “[n]ever discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone” saying the “team is a family and what takes place on the field, in meetings or in the locker room stays within this family.”

The new rule says football players should not reveal injuries because of “the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes” but says the rule does not “prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.”

According to the memorandum, “[t]hat modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.”

The memorandum further noted that the school eliminated a dispute resolution policy for student-athletes to bring a “complaint or grievance concerning personal rights and relationships to the athletic program,” which required the players to first bring such issues to the director of football operations.

So if the memorandum advised against an issuance of a complaint, why should you care about it?

Well, as was recently reported, in the Columbia University case, the Board held that student teaching assistants were employees covered by the NLRA.  These employees not only have the right to unionize, but also have the right to engage in protected concerted activity even if they do not unionize.  Any handbook or policies, therefore, governing the terms and conditions of the relationship between the teaching assistants and the college or university will likely come under the NLRB’s scrutiny.

So, employers beware (again): You should review, or have your attorney review, your current policies and handbooks to ensure compliance with the NLRA.

2016labordayWhy do we celebrate Labor Day?

And should it be celebrated on a Tuesday instead?

It’s one of those holidays that we celebrate, but my guess is that most people have no idea on the answer.  But several (many?) years ago, I touched on this on the blog and I thought it would be fun to resurrect some of those facts.

Indeed, Slate magazine had a good explainer way back in 2010 on the subject.  Turns out Grover Cleveland has a lot to do with it but its origins go back even further than that.

Though President Grover Cleveland declared Labor Day a national holiday in 1894, the occasion was first observed on Sept. 5, 1882, in New York City. A parade was organized by the city’s Central Labor Union, a branch of the Noble Order of the Knights of Labor, a secretive labor union founded in 1869 by a clique of Philadelphia tailors. Historians still debate over whom, specifically, to credit with the idea of a holiday dedicated to the workingman. Some say that Labor Day was the brainchild of Peter J. McGuire, co-founder of the American Federation of Labor. Others argue that Matthew Maguire, the CLU’s secretary, was the holiday’s mastermind and that he doesn’t receive proper credit because he ticked off the mainstream labor movement by running for vice president on the National Socialist Labor Party ticket in 1896.

According to Ted Watt’s The First Labor Day Parade, the September date was chosen because it coincided with a Knights of Labor conference in New York, thus guaranteeing a sizable turnout for the festivities. Though the event wasn’t particularly festive, at least by today’s standards: It resembled a protest far more than a parade, with CLU members required to march in support of the eight-hour workday. (Those who ditched faced fines.)

The U.S. Department of Labor’s website delves into the controversy over how the holiday started as well with this background explainer page too.

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

The most fascinating part to me was that it was first celebrated on a Tuesday!

But now, every year, the USDOL devotes new webpages to this day.  And it even posted a video about the work it is doing on the subject. 

And how did such a holiday then become the traditional end to the summer season? Well, I’ll leave that to the experts. But in the meantime, enjoy this list of top 10 workplace songs (plus some alternates).  And be sure to check out the comments on the post where my labor law friends post a “union-friendly” list too including “Bread and Roses”.  

Lucan_J_WebYesterday, the NLRB released an ground-breaking decision allowing  students to organize. My colleague, Jarad Lucan, recaps the importance of this decision not only for schools like Yale University in Connecticut, but beyond.

In its 2004 Brown University decision, the National Labor Relations Board held that graduate student teaching assistants were not employees because they were “primarily students” and their relationship with the University was educational rather than economic in nature.

On August 23, 2016, the NLRB reversed course in its Columbia University decision and held that  the unequivocal policy of the National Labor Relations Act is to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.”

Given this policy, coupled with the very broad statutory definitions of both “employee” and “employer,” the Board determined that it is appropriate to extend statutory coverage to students working for universities covered by the Act unless there are strong reasons not to do so.

The Board was not persuaded by the Brown University Board’s self-described “fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and would be inconsistent with the purposes and policies of the Act.”ColumbiaSeal

According to the Board in the Columbia University case, “[t]his ‘fundamental belief’ is unsupported by legal authority, by empirical evidence, or by the Board’s actual experience.  Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act.”

Although the Board did state that there may be “strong reasons” not to extend the protection of the Act to students working for universities, it did not specify what those reasons might be.

The Board did, however, reject Columbia’s arguments against recognizing their student workers as employees under the Act as detrimental to the pursuit of the school’s educational goals.  The Board did not find compelling Columbia’s claims that collective bargaining leads to strikes, grievances over classroom assignments and eligibility criteria for assistantships.

According to the Board,  “labor disputes are a fact of economic life—and the Act is intended to address them.”

Importantly, in the Columbia University  decision, the Board determined that a bargaining unit consisting of graduate and undergraduate teaching assistants is an appropriate unit for unionization.  In other words, the Board determined that undergraduate teaching assistants fell within the broad definition of “employee” under the Act and in this case had a common-law employment relationship with the University.

This determination greatly expands the potential “employees” at any private university that may now have the protection of the Act whether they unionize or not.

Perhaps referring back to its recent decision to decline jurisdiction over the grant-in-aid scholarship football players at Northwestern University, the  Board did state, “[w]e do not hold that the Board is required to find workers to be statutory employees whenever they are common-law employees, but only that the Board may  and should find here that student assistants are statutory employees.”

By now, it’s really not a big surprise when the NLRB reverse course on a prior decision. This week, the NLRB did it again.  My colleague, Jarad Lucan, provides this quick update on temporary/contract employees being allowed to join unions.  Read on.

Lucan_J_WebIn 2004 the National Labor Relations Board in its Oakwood Care Center case said that temporary and permanent workers must bargain separately unless the employer gives consent.

Yesterday, however, the NLRB overturned that precedent stating, “[b]y requiring employer consent, Oakwood has . . . allowed employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”

Now, after a ruling in Miller & Anderson, temporary workers provided by staffing agencies do not need an employer’s permission to join unions that include its full-time employees as long as they share a “community of interest” with full-time workers.

In dissent, board member Philip Miscimarra said that along with the NLRB’s 2015 joint employer decision in Browning-Ferris Industries Inc, the NLRB’s latest ruling would create issues for  companies that use contract labor and force many staffing firms to bargain with unions that represent the full-time workers of other companies.

As we have discussed previously, in Browning-Ferris, the NLRB said companies may be deemed joint employers of contract workers if they have the potential to control working conditions.  Previously, the board required proof of actual, direct control.

With its latest decision, it could now be easier for workers found to be joint employees under the Browning-Ferris standard to unionize.   Of course, the actual impact of both decisions still remains to be seen.

My former colleagues who write the Management Memo blog also shared this tip for employers as a result of the decision:

At a minimum, a detailed risk assessment of an employer’s workforce and its reliance upon its own employees and temporaries, leased and contract labor employed and controlled, in whole or in part, by so-called supplier employers is in order. “User” employers should determine the goals and risks associated with a relationship and determine whether it is possible and/or desirable to attempt avoid a joint employer relationship or embrace it but attempt to control liability. Both “supplier” and “user” employers should look for contractual provisions regarding defining the relationship, including who controls and does not control certain aspects, indemnification provisions, provisions related to responses and responsibilities related to union organizing and collective bargaining and similar concerns. Experienced labor counsel should be consulted to assist in these issues.

Are you an early bird? (Raises hand.) Do you still listen to AM Radio? (Hand still raised.)

Well, then you may have caught my repeat appearance a short while back on the CBIA Business Minute — a production every weekday morning heard locally at 5:59 a.m. on WTIC-AM (1080 on your radio “dial”).

Long time readers may recall may last appearance way back in 2009 where I talked about the effects the recession was having on employers.

But this time around, it’s all about the National Labor Relations Board.

Fortunately, the CBIA also put the business minute program up on its website. Each is, well, just a minute to listen to and is perfect for employers who want to know a bit about the agency.

My thanks to the CBIA for the invitation to appear.

nevermindThe Supreme Court today issued a decision in one of the most anticipated cases of the session on whether public employees could be forced to pay fees to a union that they didn’t want to belong to.

And in doing so, the court showed what happens in 4-4 splits: Nothing.

Well, that’s not entirely accurate: The court did issue a one sentence “per curiam” ruling in Freidrichs v. California Teachers Association: “The judgment is affirmed by an equally divided Court.”

And because the lower court ruling affirmed the use of these fees, public unions live to see another day.

That’s it? Yep.  We’ll have to wait until the court is back to a full contingent and hears a similar case.

It reminds me of that old routine by the glorious Gilda Radner: Never Mind!