Prognosticating The New NLRB

I recently discussed the nominees to the NLRB – but at that time they were just nominees. Now, that they are officially Board Members, let’s take a closer look at what we can expect from the fully staffed Board over the next year or so. After all, this is the first time in more than a decade that the Board is fully staffed and we don’t have to worry about any Noel Canning or New Process Steel issues.

My first conclusion is simple: the NLRB is extremely pro-union. Despite supposedly being a neutral federal agency tasked with protecting employees from both employers and unions, this is perhaps the most pro-union NLRB ever. Sort of hard for the Board to be impartial when most of the Members spent their careers advocating on behalf of unions, don’t ya think? As for the two “token” Republicans on the Board, their roles will be relegated to writing dissenting opinions.

In addition to the NLRB Board Members, President Obama also nominated Richard Griffin to serve as the Board’s General Counsel. Yep, the same Richard Griffin who was the General Counsel of the International Union of Operating Engineers and who was nominated as a Board Member just a few short months ago – before he was named as a defendant in a RICO lawsuit for allegedly giving the go-ahead to fire a member of his own union who was about to blow the whistle on a dues skimming operation. Did you follow all that? Well, as General Counsel, he now decides which cases the NLRB prosecutes, and he will help guide the NLRB’s interpretation of labor law. This is a powerful position – just ask his predecessor Leif Solomon who you can thank for the NLRB’s unrelenting prosecution of social media cases.

Here is what employers are likely to see from the new NLRB:

Quickie / Ambush Election Rules

I know, I’ve been harping on this one for a while. This rule was created in December 2011 but not implemented because of a technicality – supposedly the vote to adopt the rule was invalid. I anticipate the new Board to re-vote making sure that the re-vote is proper, and I expect the 3-2 Democratic majority to approve the rule.

Workplace Emails for Non-Job Related Activity

The NLRB under President Bush (staffed with three Republicans) ruled that companies can maintain a policy prohibiting employees from using company email systems for non-job related solicitation, including union organizing. If this is reversed, companies will be forced to allow employees to use company provided computers and Internet access to organize a union whose goals are oftentimes adverse to the company.

Weingarten Rights to Non-Represented Employees

Under President Clinton, the Board held that non-union employees could have someone accompany them during workplace investigations/questioning that could result in discipline. The Bush Board limited the right of accompaniment to only union members. I expect the Obama Board will expand the rule back to non-union employees.

Continued Focus on Non-Union Companies

The previous Obama NLRB aggressively focused on companies without unions by governing at-will statements, social media policies, confidentiality clauses, dress code policies, premises access policies, and disciplinary action. I expect the current Board to continue this practice – or even step up its aggressiveness.

The above expectations are more than guesses. They are rooted in history and are logical extensions of what the Obama Board has tried to accomplish since he was first elected to office. We are stuck with this NLRB until December 2014. Needless to say, the next year and a half will be interesting.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

OSHA and Unions and MSD Are Like Peas in a Pod

People ask me how I developed an OSHA practice since most of my peers (competitors?) are labor and employment lawyers without an OSHA practice. The answer is easy: because of the volume of traditional labor work I do – meaning representing companies against labor unions – I had to learn the ins and outs of OSHA. And here is a perfect example of how OSHA and unions go hand in hand.

OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers. Injuries associated with MSD include sprains, strains, soft tissue and back injuries – mostly from lifting and maneuvering patients. In fact, in 2010 alone there were over 40,000 MSD injuries, so curbing these injuries is a good thing. Sounds innocent enough, right?

Through its campaign, OSHA will provide 2,500 companies, unions, and interested associations in the patient care industry in several states with information about methods to control lifting excessive weight and patient handling such as zero-lift programs that utilize lifting equipment instead of humans to move patients. I imagine this will require several expensive whale-like harnesses for each facility. And based on OSHA’s own Safe Patient Handling guidelines, I’m right.

OSHA’s MSD campaign is part of a larger campaign by OSHA, unions, and health care worker advocates to put increased pressure on inspections in the healthcare industry. The Washington-based pro-union advocacy group Public Citizen released a report “Health Care Workers Unprotected” that criticized OSHA for not inspecting more healthcare establishments and lacking standards addressing healthcare industry hazards. In fact the SEIU and American Nurses Association union are vocal backers of this group.

The report alleges that healthcare workers suffer more injuries and illnesses on the job each year than in any other industry, but that OSHA does comparatively fewer inspections of healthcare facilities. It also argues that OSHA is hesitant to cite employers under its General Duty Clause for violations that do not correspond to a specific safety standard. And, of course, the report urges Congress to significantly increase funding to OSHA.

Unfortunately, whenever OSHA has “campaigns” and provides information to companies about hazards it believes are present, inspections, enforcements, and fines are sure to follow. In a round-about way, OSHA has put you on notice and can now easily cite your company under the General Duty Clause.

This blatant union-backed effort follows the release of OSHA’s letter of interpretation announcing that during an inspection of a non-union worksite, non-union employees can be represented by anyone they choose – including outside union agents. This new policy undoubtedly encourages unions to get more involved in OSHA inspections of non-union companies as a means of gaining access to the employer, snooping around, and having direct contact with workers during working hours.

If you are a non-union employer in the healthcare industry, it is likely that at least one of your employees have been contacted by a union business agent. Perhaps the time isn’t right for the employees to try to form a union, but that doesn’t deter the business agent. He will gladly wait on the sideline acting as a conduit between workers and government inspections. For example, if an employee is injured, he will call OSHA; if a minority is terminated, he will call the EEOC; if someone complains about a term or condition of employment, he will call the NLRB – even if the employee doesn’t want him to call.  And with respect to OSHA, specifically, that phone call to OSHA may be just the opening he needs to get inside the workplace and recruit union supporters.

For healthcare companies with unions, MSD will be a major topic the next time you negotiate a collective bargaining agreement. Unions will seek to require companies to purchase the expensive equipment recommended by OSHA without regard to cost or feasibility of use.  And, of course, unions have ready-made anti-company propaganda alleging how dangerous the workplace is or how much the company doesn’t care about employee safety, should employers not agree to these demands.

OSHA and Unions have the same goal – to be a more relevant presence inside all companies. Neither are going away soon or staying quiet any longer. More information about how unions and OSHA work closely together can be found on my website.

New Members to the National Labor Relations Board Will Be Appointed

While England awaits the birth of Prince William and Princess Kate’s first baby, we in the US await the anointing of our next Members to the National Labor Relations Board. OK, I concede more Englanders are waiting with baited breath than we are on this side of the pond. Let’s face it, this fully functioning NLRB is not good news for companies.

President Barack Obama will nominate Nancy Schiffer and Kent Hirozawa to replace Richard Griffin and Sharon Block on the National Labor Relations Board. The two new Members were handpicked after close consultations supposedly between the Obama Administration and Richard Trumka, head of the AFL-CIO.

As expected, the two new Board nominees have spent much of their professional lives advocating on behalf of unions. Ms. Schiffer was most recently associate general counsel at the AFL-CIO from 2000-2012. Before that, she was counsel to the UAW. Her term would expire on Dec. 16, 2014. As counsel for the AFL-CIO, Schiffer testified in 2007 in favor of the Employee Free Choice Act (EFCA) in person and in writing. Her written testimony, “Strengthening America’s Middle Class Through the Employee Free Choice Act” states:

The Employee Free Choice Act would reform the NLRA so that workers can choose union representation and collective bargaining without fear and intimidation. When a majority of workers demonstrate their choice to form a union their representative can be certified by the NLRB without the need for the delay-ridden, coercive, and divisive NLRB election process. Federal labor law would finally, and again, assure that workers who want collective bargaining are able to have it. And it would guarantee that collective bargaining would be conducted effectively and efficiently and would result in a contract. Finally, it would create real penalties as a deterrent to unlawful employee conduct. We urge your support of the Employee Free Choice Act.

Mr. Hirozawa is currently chief counsel to NLRB Chairman Mark Gaston, and if confirmed, his term would end Aug. 27, 2016. Hirozawa’s career basically mirrors Gaston’s, as he was an NLRB field attorney (Region 2, covering New York) before spending over 20 years in private practice representing unions. I expect Hirozawa’s votes will also mirror Gaston’s.

The Senate will also vote on the remaining Board nominees, Republicans Harry I. Johnson, III and Philip A. Miscimarra. The deal also clears the way for approval of Thomas Perez’s nomination for Labor Secretary.

This deal averted the “nuclear option” but also removes obstacles to the NLRB proceeding with its aggressive pro-labor agenda. A fully functioning Board is poised to make sweeping changes, including issuing more expansive “quickie” or “ambush” election rules, moving forward with its persuader reporting rules, and continuing to change legal precedent as it has done over the past few years like this, this, this, and this to name a few.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

OSHA Reminds Carpenters About Dangers of Nail Guns

I have represented many construction companies over the years from representing non-union companies through the Associated Builders and Contractors to serving as counsel to the National Association of Remodeling Industry, Central Ohio Chapter. And since OSHA issues make up a significant part of my practice, this latest reminder from OSHA about the dangers of nail guns hits close to home for me.

According to OSHA, nail guns are used every day on many construction jobs. They boost productivity but also cause tens of thousands of serious injuries each year. Nail gun injuries are common — one study found that 2 out of 5 residential carpenter apprentices experienced a nail gun injury over a four-year period (and I bet that number is much higher for weekend do-it-yourselfers who rent nail guns from the local hardware store). Injuries resulting from use of nail guns hospitalize more construction workers than any other tool-related injury. When they do occur, these injuries are often not reported or given proper medical treatment. Research has identified that the risk of a nail gun injury is twice as high when using a multi-shot contact trigger as when using a single-shot sequential trigger nailer.

If you are around nail guns, you should definitely check out OSHA’s Nail Gun Safety Guide. It’s a quick read with good tips on avoiding nail gun related injuries.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

“Play or Pay” Delayed, But What Hasn’t Changed?

On the eve of the long July 4th weekend, the Obama administration announced it is delaying three important requirements of ObamaCare that affect employers.

Requirements That Are Delayed

1. The “Play or Pay” Mandate

Under the “Play or Pay” mandate, large employers must offer affordable, minimum value health coverage to their full-time employees and their children or pay a penalty. Now, no penalty will be imposed for non-compliance prior to January 2015. It is not clear whether there will be any additional transition relief, such as for fiscal year plans.

2. Notifications of Health Coverage

Under ObamaCare, health insurers and group health plans must notify the IRS of who is covered under health coverage during each month of the year. Coverage information statements must also be provided to the affected individuals detailing the information reported to the IRS about the individual. This requirement is also delayed to the 2015 calendar year, with reporting required in January 2016.

3. Notifications Regarding Full-Time Employees and Offer of Coverage

Under ObamaCare, large employers must notify the IRS of who their full-time employees are for each month of the year and whether they were offered affordable, minimum value coverage. Large employers are also required to provide statements to their full-time employees detailing the information reported to the IRS about the employee. This requirement is delayed to the 2015 calendar year, with reporting required in January 2016.

Requirements That Are Not Delayed

The individual mandate to have health coverage is still effective January 1, 2014. Because of the delay of the employer mandate, enrollment through the state health insurance marketplaces, as well as the number of individuals who qualify for a premium tax credit, may increase for 2014.

No other effective dates have changed so employers must address other upcoming requirements like:

  • Paying the comparative effectiveness (PCORI) fee, which is due July 31, 2013 for many plans, including calendar year plans;
  • Distributing the notice about health insurance marketplaces to employees by October 1, 2013 (FLSA § 18B);
  • Updating plans to cover women’s preventive services with no cost sharing;
  • Eliminating waiting periods for health coverage in excess of 90 days;
  • Eliminating preexisting condition limitations;
  • Updating wellness programs to comply with new requirements, including providing a reasonable alternative even when the individual does not have a medical issue;
  • Reducing the out-of-pocket maximum, as necessary, to not exceed the out-of-pocket maximum permitted for high deductible health plans ($6,350 for self coverage and $12,700 for other tiers of coverage in 2014);
  • Removing health coverage provisions that discriminate against health care providers acting within the scope of their license or participants who enroll in clinical trials;
  • Updating HIPAA privacy policies, notices of privacy practices, and plan provisions to comply with HITECH by September 23, 2013 and updating business associate agreements by September 23, 2014; and
  • Making necessary changes to address the Supreme Court’s recent decision finding unconstitutional the provision of the Defense of Marriage Act that defined “spouse” for federal purposes as being only an opposite-sex spouse.

Employers should also continue to develop their strategy and administrative systems for complying with the “Play or Pay” employer mandate and related reporting requirements.

DOL Game-Changing “Persuader Rule” Set to Take Effect in November 2013

The Department of Labor recently announced a November 2013 target implementation date for its revised, i.e. skewed against employers, “advice exemption” in the Labor Management Reporting and Disclosure Act (LMRDA).

Currently, companies are not required to disclose to the federal government when they receive advice relating to labor relations, from who they received the advice, how much they paid for the advice, and the content of the advice. This is all about to change. The revised regulations impose expansive reporting requirements on employers, their labor relations consultants and possibly their attorneys representing an unprecedented intrusion into the attorney-client relationship.

The current LMRDA provides financial reporting and disclosure requirements for labor organizations, their officers and employees. Employers are only required to report agreements with labor relations consultants when the consultant undertakes activities to persuade employees to exercise or not to exercise their right to organize a union and bargain collectively. Attorney-client communication is rightfully exempt from disclosure.

The DOL’s proposed revisions require a company to report whenever it receives advice regarding labor relations. Specifically, “with respect to persuader agreements or arrangements, “advice” means an oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, “persuader activity” refers to a consultant’s providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or in part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.”

Come November 2013, if the DOL hits its target implementation date, reportable activities will include:

  • drafting, revising, or providing materials or communication to an employer for presentation or distribution to employees;
  • administering employee attitude surveys concerning union awareness or “proneness”;
  • training supervisors to conduct meetings designed to persuade employees;
  • directing activities of supervisors to engage in the persuasion of employees;
  • establishing employee committees;
  • developing employer personnel policies designed to persuade employees; and/or
  • deciding which employees to target for persuader activity or disciplinary action.

Astonishingly, reportable activity will also include the mere supplying of information to an employer concerning the activities of employees or a labor organization in connection with a labor dispute involving that employer. “Labor dispute” is defined very broadly to include not only issues regarding representation or association, but also “any controversy concerning terms, tenure, or conditions of employment.” Examples of reportable activity include:

  • research or investigation concerning employees or labor organizations;
  • employees, employee representatives, or union meetings; and
  • surveillance of employees or union representatives (video, audio, Internet, or in person).

The proposed regulations require employers and their counsel to report the details of these third-party relationships and the specific activities performed regardless of whether the third-parties have any direct contact with employees, as well as provide receipts and disbursements reports for any payments related to the reportable activities.

This rule has already faced significant legal challenge. The American Bar Association, Association of Corporate Counsel, and the Ohio State Bar Association to name a few have urged the DOL to leave the interpretation of the advice exemption as it has long been understood, arguing that the proposed rules are inconsistent with both the statutory language of the LMRDA and the rules of professional conduct pertaining to lawyer-client confidentiality.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.