Last week I looked back at the five most important labor law developments in 2015. This week I look forward to the top 5 most important issues labor professionals should find a place for on their “to do” list this year:
- Prepare for the DOL persuader regulations. Going on five years now, the DOL has been working on a regulation that would alter a long-standing interpretation of a fairly
obscure statute called the Labor-Management Reporting and Disclosure Act (LMRDA). Some prior posts discuss the details and implications of this rule. It is likely that employers will see a final regulation in 2016. Labor professionals not already familiar with the proposed rule and its potential impact an their business should spend time in early 2016 getting up to speed. - Examine the impact of the NLRB’s new joint employer standard. In 2016, we should see some cases that will “flesh out” the new joint employer standard. Included in these may be the expansion of (or decision not to expand) this new standard to franchisor/franchisee, lender/borrower, or parent/subsidiary relationships, to name just a few the dissent in BFI raised. Every labor professional should use 2016 to identify and address, if so desired, the joint employer risks that now lurk in the contractual arrangements and course of dealing employers have with temporary services firms, subcontractors, and others.
- Get ready for even more new rules on temporary employees from the NLRB. For many years, the NLRB held that, absent the consent of both a temporary services company and a company that used those employees (a “user employer”), the temporary employees could not be included in a bargaining unit made up of the user employer’s employees. During the Clinton Administration, the NLRB changed this rule, applying traditional “community of interest” factors which made it easier to include temporary employees in a bargaining unit of the user employer’s employees. During the second Bush Administration, the NLRB reverted to its long-standing rule. Most recently, the NLRB has invited amicus briefs on the question in a case called Miller & Anderson, Inc. Such a request has typically foreshadowed a rule change, and usually not in a direction that is favorable for employers. Thus, labor professionals should spend some time in 2016 planning for the possible ramifications of a change in this rule.
- Monitor the first full year of data from the NLRB’s quickie (or “ambush”) election rule. The rule will have been in effect for a full year as of April. Expect to see much analysis, including a post on this blog, of that data. A full year of data should provide labor professionals a more reliable basis for evaluating the impact of the rule on the number of union elections held, the number of union wins, and the time between filing of a petition and holding the election.
- Watch the ongoing battles over mandatory union dues and fees. Whether an employee must join a union, or in the alternative pay a fee, as a condition of employment will be a hot issue in 2016. In the public sector, the U.S. Supreme Court heard arguments just last week on whether “agency fees,” which are mandatory payments to a union for union-represented public employees in about 20 states in the country (including Ohio), are an unconstitutional violation of the employee’s First Amendment rights. In the private sector, the “right to work” movement has scored recent victories in Wisconsin, Indiana, and Michigan, and legislation was recently introduced in Ohio. Expect state level efforts to continue on this front.
As was the case last year, the list could easily be longer. But these are a few of the areas that labor professionals will want to monitor so as to determine whether any proactive steps should be taken.
*Special thanks to my partner, Al Kinzer, for his contributions to this post.