A LABOR FOCUSED FUTURE

This promises to be a time of quickly accelerating changes in labor relations, catalyzed in part by remote work in the context of Covid-19 and, parallel to that, the potential for new structures for labor relations if a new Congress advances the re-writing of traditional labor relations envisioned in the so-called “PRO” Act, amending the National Labor Relations Act, the Labor Management Relations Act, 1947, and the Labor-Management Reporting and Disclosure Act of 1959, inter alia. The latter matters because we may see reversals of decade long entrenched employer protections in those statutes, a novel penalty scheme, and, for the first time, private rights of action.

This article has further ambitions in that it will conclude by presenting an outline of what the author sees as primary to do items and talking points are meant to stimulate thought for a future Highlights article.

I. Annotated Excerpts from the PRO Act

This annotation focuses on structural changes in rights and remedies which embody long sought after changes in federal labor law but does not discuss the shifts in election rules and process designed to speed up elections and limit employer objections or the federal repeal of state based right to work statutes, as these are well known and, in some sense, to be expected.  Potential constitutional challenges are likewise reserved for a later alert.

An Expansive Definition of Joint Employer

Section 2(2) of the National Labor Relations Act (29 U.S.C. 152(2)) is amended by adding at the end the following: “Two or more persons shall be employers with respect to an employee if each such person codetermines or shares control over the employee’s essential terms and conditions of employment. In determining whether such control exists, the Board or a court of competent jurisdiction shall consider as relevant direct control and indirect control over such terms and conditions, reserved authority to control such terms and conditions, and control over such terms and conditions exercised by a person in fact: Provided, That nothing herein precludes a finding that indirect or reserved control standing alone can be sufficient given specific facts and circumstances.”

An Expanded Definition of Employee Following the ABC Test

Section 2(3) of the National Labor Relations Act (29 U.S.C. 152(3)) is amended by adding at the end the following: “An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor, unless:

“(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
“(B) the service is performed outside the usual course of the business of the employer; and
“(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

 

Rewriting The Law of Unfair Labor Practices. By Restricting Replacement Workers,
Providing For Expanded Injunctive Relief and, For the First Time Monetary Penalties

Thus, Section 8 of the National Labor Relations Act (29 U.S.C.158) is amended (1) in subsection (A) in paragraph (5), by striking the period and inserting “; and”; and (B) by adding at the end the following: “(6) to promise, threaten, or take any action “(A) to permanently replace an employee who participates in a strike as defined by section 501(2) of the Labor Management Relations Act, 1947 (29 U.S.C. 142(2)); or

“(B) to discriminate against an employee who is working or has unconditionally offered to return to work for the employer because the employee supported or participated in such a strike.”;

(3) in subsection (c), by striking the period at the end and inserting the following: “Provided, That it shall be an unfair labor practice under subsection (a)(1) for any employer to require or coerce an employee to attend or participate in such employer’s campaign activities unrelated to the employee’s job duties, including activities that are subject to the requirements under section 203(b) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 433(b)).”

(e) Prevention of Unfair Labor Practices

Section 10(c) of the National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking “suffered by him” and inserting “suffered by such employee: Provided further, That if the Board finds that an employer has discriminated against an employee in violation of paragraph (3) or (4) of section 8(a) or has committed a violation of section 8(a) that results in the discharge of an employee or other serious economic harm to an employee, the Board shall award the employee back pay without any reduction (including any reduction based on the employee’s interim earnings or failure to earn interim earnings), front pay (when appropriate), consequential damages, and an additional amount as liquidated damages equal to two times the amount of damages awarded: Provided further, no relief under this subsection shall be denied on the basis that the employee is, or was during the time of relevant employment or during the back pay period, an unauthorized alien as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3)) or any other provision of Federal law relating to the unlawful employment of aliens”.

(f) Enforcing Compliance with Orders of The Board

 (2) Any person who fails or neglects to obey an order of the Board shall forfeit and pay to the Board a civil penalty of not more than $10,000 for each violation, which shall accrue to the Board and may be recovered in a civil action brought by the Board to the district court of the United States in which the unfair labor practice or other subject of the order occurred, or in which such person or entity resides or transacts business. No action by the Board under this paragraph may be made until 30 days following the issuance of an order. Each separate violation of such an order shall be a separate offense, except that, in the case of a violation in which a person fails to obey or neglects to obey a final order of the Board, each day such failure or neglect continues shall be deemed a separate offense.

 (3) If, after having provided a person or entity with notice and an opportunity to be heard regarding a civil action under subparagraph (2) for the enforcement of an order, the court determines that the order was regularly made and duly served, and that the person or entity is in disobedience of the same, the court shall enforce obedience to such order by an injunction or other proper process, mandatory or otherwise, to “(A) restrain such person or entity or the officers, agents, or representatives of such person or entity, from further disobedience to such order; or (B) enjoin such person or entity, officers, agents, or representatives to obedience to the same.”;

(g) Injunctions Against Unfair Labor Practices Involving Discharge or Other Serious Economic Harm

Section10 of the National Labor Relations Act (29 U.S.C. 160) is amended…

 (2) Notwithstanding subsection (m), whenever it is charged that an employer has engaged in an unfair labor practice within the meaning of paragraph (1) or (3) of section 8(a) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed under section 7, or involves discharge or other serious economic harm to an employee, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, such officer or attorney shall bring a petition for appropriate temporary relief or restraining order as set forth in paragraph (1). The district court shall grant the relief requested unless the court concludes that there is no reasonable likelihood that the Board will succeed on the merits of the Board’s claim.”; and

(h) Penalties

SEC. 12. PENALTIES.

 (a) VIOLATIONS FOR INTERFERENCE WITH BOARD

 (b) VIOLATIONS FOR POSTING REQUIREMENTS AND VOTER LIST

If the Board, or any agent or agency designated by the Board for such purposes, determines that an employer has violated section 8(h) or regulations issued thereunder, the Board shall:

(1) state the findings of fact supporting such determination;
(2) issue and cause to be served on such employer an order requiring that such employer comply with section 8(h) or regulations issued thereunder; and
(3) impose a civil penalty in an amount determined appropriate by the Board, except that in no case shall the amount of such penalty exceed $500 for each such violation.

 

 (c) VIOLATIONS CAUSING SERIOUS ECONOMIC HARM TO EMPLOYEES

 (1) IN GENERAL.—Any employer who commits an unfair labor practice within the meaning of paragraph (3) or (4) of section 8(a), or a violation of section 8(a) that results in the discharge of an employee or other serious economic harm to an employee, shall, in addition to any remedy ordered by the Board, be subject to a civil penalty in an amount not to exceed $50,000 for each violation, except that the Board shall double the amount of such penalty, to an amount not to exceed $100,000, in any case where the employer has within the preceding five years committed another such violation.

 (3) DIRECTOR AND OFFICER LIABILITY.—If the Board determines, based on the particular facts and circumstances presented, that a director or officer’s personal liability is warranted, a civil penalty for a violation described in this subsection may also be assessed against any director or officer of the employer who directed or committed the violation, had established a policy that led to such a violation, or had actual or constructive knowledge of and the authority to prevent the violation and failed to prevent the violation.

 (d) Right to Civil Action

Any person who is injured by reason of a violation of paragraph (1) or (3) of section 8(a) may, after 60 days following the filing of a charge with the Board alleging an unfair labor practice, bring a civil action in the appropriate district court of the United States against the employer within 90 days after the expiration of the 60-day period or the date the Board notifies the person that no complaint shall issue, whichever occurs earlier, provided that the Board has not filed a petition under section 10(j) of this Act prior to the expiration of the 60-day period. No relief under this subsection shall be denied on the basis that the employee is, or was during the time of relevant employment or during the back pay period, an unauthorized alien as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C.1324a(h)(3)) or any other provision of Federal law relating to the unlawful employment of aliens.

 (2) AVAILABLE RELIEF — Relief granted in an action under paragraph (1) may include:

“(A) back pay without any reduction, including any reduction based on the employee’s interim earnings or failure to earn interim earnings;
“(B) front pay (when appropriate);
“(C) consequential damages;
“(D) an additional amount as liquidated damages equal to two times the cumulative amount of damages awarded under subparagraphs (A) through (C);
“(E) in appropriate cases, punitive damages in accordance with paragraph (4); and

 

 (3) ATTORNEY’S FEES — In any civil action under this subsection, the court may allow the prevailing party a reasonable attorney’s fee (including expert fees) and other reasonable costs associated with maintaining the action.

 (4) PUNITIVE DAMAGES — In awarding punitive damages under paragraph (2)(E), the court shall consider:

 “(A) the gravity of the unfair labor practice; “(B) the impact of the unfair labor practice on

the charging party, on other persons seeking to exercise rights guaranteed by this Act, and on the public interest; and “(C) the gross income of the employer.”

II.                Conclusion

It is fair to say that the impact of the Covid-19 pandemic will catalyze many changes in the human resources and labor practice area.  Below is my outline of items that labor counsel should be mindful of as employers navigate this ever-changing legal landscape.     

A. Developing a Policy Game Plan

What does “return to work” actually mean?
What policies to revise now and how?
Adapting to constant legislative and regulatory change.
Adapting to rapid digitization of the workplace.
Management of the new workplace.
New Non-Solicitation polices for remote connected work.

 

B. Covid Trends

Covid Workers Comp Rebuttable Presumption Codified;
Covid Reporting and Tracing and Record keeping Expanded;
CAL-OSHA Expands into Covid Reporting and Incident Management.

 

C. HR and Benefits

CFRA expands for small employers;
Covid sick leave expands for large employers;
Tailoring handbooks and policies for the new workplace one for in place workers and another for the new remote workforce;
New models for employee well-being and training that anticipate different stressors;
New models for timekeeping and payroll compliance;
Travel between home “work” and work a compensation for remote incurred expenses;
Exempt “hourly” work where exempt workers must perform non-exempt tasks.

 

D. Case Handling and Litigation

In the era of Covid all aspects of the trial process are now being handled differently – an overview in the courts and administrative processes:

Telephonic and Remote Hearings – Should You Object?
Trials without juries – Is there a choice?
Managing private mediation and arbitration and controlling costs.

 

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