The Future of Labor: There’s a New Sheriff in Town
By: Kyllan Kershaw
Over the coming months, we will be discussing our thoughts on what the future likely holds for employers with unionized work forces, including the ever-changing “gig economy” landscape, the impact of automation on unions and employers, and other challenges our traditional-labor clients will face in the coming years. We kick off with a discussion of what changes unionized employers might expect from the Trump administration.
The Trump Administration: Significant Changes Ahead
NLRB: Most employers--union and non-union alike--eagerly await President Trump’s appointment of two Republican members to the National Labor Relations Board. We anticipate that a Trump-appointed Board will revisit many of the radical decisions of its predecessor Board, including those regarding:
- Workplace policies and rules. A Trump-appointed Board is likely to overrule the prior Board on several workplace-rule issues, including employee access to information, civility and professionalism, class actions and arbitrations, confidentiality during investigations, employee dress code, and recording in the workplace. We believe the incoming Board will tackle handbooks and work rules differently, instead balancing the potential adverse effect of the rule on protected activity against an employer’s legitimate business justifications, as outlined in Acting Chairman Miscimarra’s dissent in Beaumont Hospital.
Joint-employer status and ramifications, including Browning-Ferris and Miller & Anderson.
Use of permanent replacements during a strike.
Successorship issues, particularly changes to the standard for a perfectly-clear successor.
Various collective bargaining issues, including the ability to discipline during first-contract negotiations (Alan Ritchey); the degradation of management-rights clauses; and the expansion of a union’s right to company information during bargaining.
Specialty Healthcare “micro-units” and decisions enforcing the “quickie” election rules. We believe a Trump Board will revisit the quickie election rules as well but it will have to go through the agency rulemaking process in order to do so.
Likewise, we note that some of the issues on the NLRB General Counsel’s agenda will likely disappear, including expansion of Weingarten rights to non-union employees and allowing unions to engage in intermittent strike activity.
Department of Labor: We anticipate that President Trump’s Department of Labor nominee, Alexander Acosta, will be confirmed. Acosta is viewed as an employer-friendly nominee and his nomination potentially signals the end of onerous rule changes for employers, including the oft-discussed (and now enjoined) persuader-rule changes proposed by the Obama Administration.
Right-to-Work Laws: The momentum of state right-to-work legislation continues in full-force following the 2016 election, with recent legislation passed in Kentucky and Missouri (though we note that similar legislation was narrowly defeated in New Hampshire in February). House Republicans recently introduced a bill that would effectively create a national right-to-work law by amending the National Labor Relations Act to prohibit “union-security” clauses. The legislation remains in committee.
Unpredictable headaches: While many of the Trump Administration’s proposed actions are welcomed by employers, the speedy issuance of executive orders out of the White House on issues such as immigration have left many employers reeling.
Conclusion
On balance, we believe the Trump Administration will bring welcome changes for employers grappling with labor-relations issues, though some changes may be slow-going (i.e., revisions to election rules).
We hope you’ll stick with us for this series on the future of labor. If there is a specific topic you are hoping we will discuss, please contact futureemployer@seyfarth.com.
