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.

This morning, I appeared on Ray Dunaway’s show on WTIC radio (1080 AM) to discuss the NLRB’s new proposed rules on union representation elections.  (A link will be available when it is posted online.)

Photo courtesy Library of Congress (1947)

Of course, in 5 minutes, there wasn’t much time to explain everything about it (here’s a summary of the proposals from the NLRB itself), so here’s a bit more:

  • First, these are only proposed rules now; the NLRB is taking public comment for the next 60 days and will then decide whether or not to revise them and whether to release them in final form.
  • NLRB member Brian Hayes dissented from the proposal and said that these proposal essential adopt organized labor’s goals:

[B]y administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.

  • Among the changes that are proposed a to reduce the time for an initial hearing from 14 days to 7.   Employers will be required to submit a list of issues by that time. That is an extraordinary short amount of time for an employer to mount any kind of serious opposition or even research into issues that may arise.
  • Under the new rules, an employer would be required to submit to the union a final list of eligible votes two days after an election has been scheduled (down from 7).  The list must also include the employee’s phone number and e-mail address.  Query whether the employee has a legitimate privacy interest in having this information kept confidential.
  • There are plenty of summaries of other proposed changes available, including an update from Labor Relations Today, which was one of the first to analyze it.

No doubt that one of the questions that employers will ask is why are these rules necessary?  The median time to hold an election is 38 days now, and unions win over 67% of elections.  Surely that number will go higher if these proposals are adopted.   The NLRB believes these rules can improve the election system further:

[T]he current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices. It is worth asking, again, whether the Board can now do a better job, and can better serve the employees, employers, and unions that participate in the election process.

Anyone can submit public comments about the proposed rules. For more information, see the NLRB’s website.