Labor & Employment Law Update: Changes May Lead To More Litigation
June has been a busy month for employment law, as the U.S. Department of Labor (under new Labor Secretary Alex Acosta) has taken several actions to dismantle a series of the Obama Administration’s rules put in place to protect employees. Specifically, in just the first week of June, the Department of Labor withdrew two guidance letters issued during the Obama administration which sought to address the misclassification (and thus unjust treatment of) workers as independent contractors.
In addition, several bills were introduced to make adjustments to the National Labor Relations Act.
Dismantling Rules Protecting Contractors
The first guidance rule dismantled opined that most workers are employees versus independent contractors, and set forth a multi-factor test aimed at determining to what extent workers are economically dependent upon their employees to emphasize that this is more relevant than the degree to which a business controls an employee’s work. The second applied to allowing a company and its contractor to be considered joint employers if the company had a right to control the contractor, regardless of whether that right was exercised.
Legislation To Roll Back National Labor Relations Board Election Rules
A number of bills were also introduced to amend the National Labor Relations Act (Act); specifically, to undo some of the changes made to the union representation election process put in place during the Obama administration: The Employee Privacy Protection Act, Employee Rights Act, and Workforce Democracy and Fairness Act. If passed, these three bills will, together:
- Amend the Act to require that, in all representation elections (National Labor Relation Board elections), a hearing would be held within 14 days of the filing of a petition;
- Expressly incorporate the “community of interest” factors for determining the appropriate unit in a representation proceeding (i.e. .the older standards cast aside by the Board in the 2011 Specialty Healthcare decision);
- Amend the Act to require that lists of employees eligible to vote in organizing elections be provided to the National Labor Relations Board;
- Amend the Act to make various changes to elections, including: allowing recognition only via secret ballot election conducted by the Board; requiring selection by a majority of eligible unit employees; requiring that elections be held in certified and recognized units which have experienced turnover or expansion in excess of 50 percent; requiring inclusion only of names and home addresses on voter eligibility lists (along with an employee-opt-out mechanism); restoring entitlement to a pre-election hearing to resolve material factual issues; providing tougher financial penalties for union’s committing unfair labor practices; and requiring opt-in by employees who want to use union dues for non-representational activities.
The bills are currently in the Health, Education, Labor & Pension Subcommittee of the Education and Workforce Committee.
Employment Lawyer on Your Side
The many changes being implemented in Washington, DC to dismantle protections explicitly put in place to protect workers since 2008 will likely translate to more and more workers having to file employment and labor law lawsuits in order to assert their rights.
If your rights as an employee have been violated, we are here to help. Florida employment law attorney Robert S. Norell helps people statewide whose rights as employees have been violated. Contact our Florida labor, employment and overtime law firm today.