Workplace Regulations 2013 and Beyond Title Goes Here

Transcription

1 Workplace Regulations 2013 and Beyond Title Goes Here Presented By: Harold P. ( Hal ) Coxson (Washington, D.C.) Charlotte ACC September 5, 2012

2 CAVEAT Recognize audience, our clients, and our lawyers are Republicans, Democrats, and Independents (or None of the Above). Many reasons beyond labor & employment policy to vote for particular candidates / political parties. So, to best of my ability, I will be non-partisan, stick to the facts and not take sides on this inherently political subject.

3 2012 Elections : Where Are We Today (62 Days from Election)?

4 Recent Presidential Election Polls: Too Close to Call Gallup (8/29) Obama 47% Romney 46% CBS (8/26) Obama 46% Romney 45% ABC/Was. Post (8/25) Obama 46% Romney 47% CNN (8/23) Obama 49% Romney 47% Fox (8/21) Obama 44% Romney 45%

5 Key Battleground States Presidential Election Electoral College (270 Needed to Win) Obama 221 Romney 191 Toss-Ups 126 Key States Colorado (9) Florida (29) Iowa (6) Michigan (16) Nevada (6) New Hampshire(4) North Carolina (15) Ohio (18) Virginia (13) Wisconsin (10)

6 Other States - Presidential Leans Obama (49) Connecticut (7) Minnesota (10) New Mexico (5) Oregon (7) Pennsylvania (20) Leans Romney (57) Arizona (11) Georgia (16) Indiana (11) Missouri (10) South Carolina (9)

7 Right Direction / Wrong Track ABC (8/25): 29% Right 62% Wrong Rasmussen (8/26): 28% Right 63% Wrong AP (8/20): 35% Right 60% Wrong NBC (8/20): 32% Right 61% Wrong

8 Health Care Repeal Rasmussen (8/25): 51% Support Repeal 41% Oppose Repeal Quinnipiac (7/8): 49% Support Repeal 43% Oppose Repeal CNN (7/1): 52% Support Repeal 46% Oppose Repeal

9 Where Are We Now? 112 th Congress ( ) U.S. House of Representatives 242 R, 191 D, 2 vacant seats U.S. Senate 47 R, 51 D, 2 Ind. (who caucus w/ D)

10 Congressional Performance EXCELLENT 0% GOOD 8% FAIR 25% POOR 64% Rasmussen (Aug. 23, 2012)

11 Key Battleground States - Senate 46 Democrats (37 Safe or Not Up) 46 Republican (42 Safe or Not Up) 8 Toss-Ups Key States CT: Open (D) IN: Open (R) MA: Brown (R) MI: Stabenow (D) MT: Tester (D) ND: Open (D) OH: Brown (D) VA: Open (D)

12 Other States Leans Democratic FL: Nelson (D) HI: Open (D) MO: McCaskill (D) NM: Open (D) Leans Republican AZ: Open (R) NV: Heller (R) WI: Open (D)

13 Most Vulnerable Senate Seats 1. ME (Open - R) 2. NE (Open - D) 3. ND (Open - D) 4. WI (Open - D) 5. MT (Tester - D) 6. MO (McCaskill - D) 7. MA (Brown - R) 8. FL (Nelson - D) 9. VA (Open - D) 10. NV (Heller - R) 11. OH (Brown - D) 12. NM (Open - D) 13. MI (Stabenow - D) 14. HI (Open - D) 15. IN (Open - R)

14 Key House Races to Watch Democrats 183 Republicans 229 Toss Ups 23

15 House Races Republican Toss-Ups CA26: Open (R) CA52: Bilbray (R) CA7: Lungren (R) CO6: Coffman (R) FL18: West (R) IA4: King (R) IL10: Dold (R) IL11: Biggert (R) MI11: Open (R) MN8: Cravaack (R) NH1: Guinta (R) NV3: Heck (R) TX23: Canseco (R)

16 House Races Democratic Toss-Ups CA24: Capps (D) CA9: McNerney (D) IL12: Open (D) NY1: Bishop (D) NY21: Owens (D) NY27: Hochul (D) OK2: Open (D) PA12: Critz (D)

17 Elections Have Consequences Workplace Issues Labor Policy / Labor Relations Employment Policy Retirement Benefits Health Care Immigration Policy Litigation: Class and Collective Actions Wage & Hour Safety & Health Education & Training And of course, JOBS!!

18 Big Workplace Issues Over Next Four Years Cut Government Spending Reduce the Deficit Increase Jobs and Employment Encourage Business Investment Reform Social Security & Medicare Health Care Reform Fix Retirement Security Systems Public & Private Sector Pensions Reduce Government Regulations Stop Union Labor Law Reforms Legislative / Regulatory Tackle Legal Reform - Reduce Class Action Lawsuits Improve Education & Training Enact an Energy Plan Reduce Dependence on Foreign Oil Immigration Reform

19 Where Are We Now?

20 Gridlock in Congress

21 Gridlock Both political parties bear responsibility. Will take leaders in both parties to end gridlock. Some consider gridlock good if it blocks legislation they don t like, but bad only when it blocks legislation they do like. All in the eyes of the beholder. One undisputable fact: current political gridlock in Washington is worst in my 40+ years in Washington.

22 Union s Labor Law Reform Agenda Stalled in Congress Employee Free Choice Act ( card check & first contract arbitration) RESPECT Act (front line supervisors)

23 But, Entire Labor and Employment Agenda Stalled in Congress Early in Obama Term, Pro-Union Majorities in Both Houses, But Could Not Get Pro-Union Bills Past Senate Filibuster More Recently, Pro-Union Agenda Dead in House Instead, House Introduces Pro-Business Labor Law Reforms But, Neither Labor or Business Can Pass Workplace Legislation in Senate

24 Gridlock in Congress

25 Big Woes for Big Labor Failure to Enact Labor Law Reform EFCA Declining Private Sector Union Density Inability to Organize Changing Workforce Demographics Attacks on Public Sector Unions Wisconsin et al. Loss of Dues Revenue Unemployment Underfunded Multi-Employer Pension Plans Rising Health Care Costs Globalization Shift to Service Economy New Right to Work Initiatives

26 What Does Big Labor Have to Celebrate?

27 POLITICAL ALLIES

28 UNION POLITICAL SUPPORT FOR OBAMA

29 Regulatory Labor Law Reforms

30 Class Struggle: Demonize Employers

31 More Government Regulations

32 More Government Regulation

33 More Government Paperwork Burdens

34 More Government Inspections and Investigations: Tougher Enforcement

35 More Litigation

36 Now We Know Why He s Celebrating!

37 More Government Regulations Not Only At NLRB Department of Labor Wage-Hour OFCCP OSHA EBWA OLMS EEOC NMB

38 Presidential Executive Orders for Government Contractors Employee Rights Notice Posting Project Labor Agreements (PLAs) Successor Obligations under SCA Non-Reimbursement for Employer Communications

39

40 Former Board Member Craig Becker ( Recess Appointee)

41 New Recess Board

42 New Recess Board Confirmed: Mark Pearce (D), Chair Brian Hayes (R) Term Expires Dec Recess Appointments: Richard Griffin (D) Sharon Block (D) One Vacancy

43 Are the New Recess Appointments Constitutional? Appointments made on January 4, Senate not in recess Senate voted unanimously to remain in pro-forma sessions. WH Office of Legal Counsel: President Obama has discretion to determine whether Congress in recess. If recess appointments invalid, new Board lacks a quorum and is not authorized to act. New Process Steel (Supreme Court). Recess appointments being challenged in Noel Canning v. NLRB (D.C. Circuit)

44 Acting General Counsel: Lafe Solomon (D)

45 General Counsel s Reforms Increased Use of Extraordinary Remedies in Routine Cases Default Language in Settlement Agreements Reduced Deferrals to Arbitration Social Media Policies

46 GC s Other Reforms Boeing Complaint Challenges to Class Action Waivers in Mandatory Arbitration Agreements of Employment Law Disputes Challenges to Employment-at-Will Statements Increased PCA Complaints in Non-Union Settings Pressure for Quicker Representation Elections & Greater Union Access Press Releases & Website Notices Shaming Employers

47 From the Board: Rulemaking Employee Rights Notice Posting Rule Upheld by U.S. District Court for the District of Columbia Struck down by U.S. District Court for South Carolina (Charleston) in law suit filed by U.S. Chamber of Commerce and the South Carolina Chamber of Commerce (Ogletree Deakins case) Enjoined by D.C. Circuit pending appeal Fourth Circuit Appeal in SC Case Representation - Case ( Quickie Election ) Rules Struck down in U.S. District Court for the District of Columbia on 5/14/12 Had gone into effect on 4/30/12 Reconsideration Denied by Judge Boasberg (DDC) Appeal to D.C. Circuit Pending

48 Expansive Pro-Union Decisions Specialty Healthcare, 357 NLRB No. 83 (2011)( mini bargaining units) and its progeny (DTG Operations; Neiman Marcus; et al.) Lamons Gasket, 357 NLRB No. 72 (2011)( recognition bar ) UGL-UNICCO, 357 NLRB No.76 (2011) ( successor bar ) Eliason & Knuth of Arizona, 355 NLRB No. 159 (2010) (secondary activity: bannering of neutral employers) New York New York Hotel & Casino, 356 NLRB No. 119 (2011) (access by contractor s off-duty employees) D.R. Horton, 357 NLRB No. 184(2012) (class and collective action waivers in arbitration agreements) Sodexo America, 358 NLRB No. 79 (2012) (access by off-duty employees) Banner Health, 358 NLRB No. 93 (2012) (confidentiality during workplace investigations) American Red Cross Arizona, Case No. 28 CA (employment-at-will statement)

49 Other Expansive Interpretations Restricting NLRB Precedents Parexel International, 356 NLRB No. 82 (2011) ( preemptive action to avoid concerted activity) Jurys Boston Hotel, 356 NLRB No. 114 (2011) (work rules) DHL Express, 356 NLRB No. 144 (2011) (survellance by security guards) AT&T of Connecticut, 356 NLRB No.118 (2011) ( special circumstances exception to wearing of union insignia) 2 Sisters Food Group, 357 NLRB No. 368 (2011) (site for union representation elections; also, Becker s dissent on employer communications)

50 Expansive Interpretation of Protected Concerted Activity NLRB Outreach - PR Campaign to Inform Unrepresented Employees NLRB Fly - Specking Company Handbooks Increase # of ULP Charges Company Rules & Policies That May Chill Employee Rights (e.g., social media policies) even if never exercised or enforced

51 Social Media Policies

52 Increased Secondary Boycotts: Bannering Neutral Employers

53

54 Expanded Section 7 Rights: No Special Circumstances

55 More Re-Run Elections Following Union Representation Election Losses Second Bite through Re Run Elections Based on Allegedly Objectionable Conduct by Employers But Not Following Employer Losses Based on Allegedly Objectionable Conduct by Unions

56 More Corporate Campaigns Attempt to Force Neutrality / Card Check Agreements for Voluntary Recognition Global Solidarity and International Labor Standards Union Pressures on Parent Companies International Framework Agreements Efforts to Enforce ILO Conventions 87 & 98

57 What s Next? More Regulatory Reforms at NLRB Roundy s - Union Access to Employees at Work / Stricter Control of Employer Free Speech Quickie Union Representation Elections in Mini Bargaining Units More Secondary Boycotts & Pressure Tactics More ULP Charges among Unrepresented Employees Possible Legislative Reforms in Congress EFCA (card check / binding 1 st contract interest arbitration) RESPECT Act (supervisory status of 1 st Line Supervisors) Union Organizing as a Civil Right with Title VII Damages

58 What s Next? Big Labor s New PR Themes Union Membership as a Protected Category under Title VII of the 1964 Civil Rights Act Union Membership as a Civil Right (compensatory and punitive damages) Union Membership as an Integral Part of a Second Bill of Rights

59 U.S. Department of Labor

60 Office of Labor-Management Standards (OLMS)

61 WHAT S NEXT? REVISED PERSUADER REGULATIONS Proposal on Persuader Reporting Requirement Notice of proposed rulemaking and request for comments published June 21, 2011 (76 Fed. Reg ) Primary focus is to revise the advice exemption in Labor-Management Reporting & Disclosure Act (LMRDA) 60-day comment period of August 22; closed September 21, 2011 Action delayed until August 2012 and perhaps later LMRDA Enforced by Office of Labor-Management Standards (OLMS)

62 OLMS: PERSUADER REGULATIONS Proposed Modifications to Advice Exception: Examples of persuader activity that no longer constitutes advice : Providing or reviewing / editing material for distribution to employees Drafting policies with an object to persuade employees Orchestrating a campaign to avoid union organizing Providing supervisory training, audio-visuals, etc Revises Forms LM-10 and LM-20

63 Consequences Law Firms and Consultants (including trade associations and other business organizations) considered a persuader in one case, must report all income / arrangements from all clients / members for all labor relations services, even if unrelated to persuader activity Failure to report is a criminal violation Result: Employers (esp. small medium sized employers) will have reduced access to legal advice during union organizing campaigns and representation elections More ULPs & Bargaining Orders

64 Also Pending At DOL Plan, Prevent, Protect Enforcement Scheme Wage Hour Right to Know and Bridge to Justice OSHA I2P2 (Injury and Illness Protection Plans) OLMS Eliminate Advice Exemption to Persuader Regulations

65 The Future: 2013 and Beyond? Divided Government: Continued Gridlock in Congress? Government by Executive Order/ Regulatory Reforms? Will NLRB & Other Agencies Continue on Their Present Course? Will Unions Grow or Continue Declining? What s the Future of Health Care, Unemployment, Pensions, Business Taxes, Entitlements? Supreme Court Appointments Become Even More Crucial

66 2012 Elections Most Consequential in Decades Most Negative Most Expensive Clear Policy Choices Likely to be Very Close White House & Control of House and Senate (unless public disgust leads to another wave election, which is possible) At this stage, polls merely a snapshot in time and subject to change Too close to call half a dozen key states in Electoral College & several key Senate races will determine outcome.

67 PREDICTIONS?

68 DIVIDED GOVERNMENT

69 Gridlock in Congress

70 QUESTIONS?

71 Workplace Regulations 2013 and Beyond Title Goes Here Presented By: Harold P. ( Hal ) Coxson (Washington, D.C.) Charlotte ACC September 5, 2012