Dive Brief:
- As part of the Biden administration’s push to promote unions, four federal agencies created an online toolkit for employers seeking guidance on how to support and respond to employee interest in unionizing, the U.S. Department of Labor announced Sept. 7.
- The DOL collaborated with the Small Business Administration, the National Labor Relations Board and the Federal Mediation and Conciliation Services to develop the toolkit, the DOL said. The toolkit is directed toward small businesses and is set up as an FAQ on a dedicated SBA webpage, with links to DOL, NLRB and FMCS guidance on federal labor and collective bargaining laws.
- These resources should help small business owners create “effective labor-management partnerships” and ensure that employees “freely and fairly exercise their labor rights,” NLRB General Counsel Jennifer Abruzzo stated in the announcement.
Dive Insight:
The toolkit is being rolled out amid aggressive efforts by President Joe Biden to strengthen workers’ ability to organize. It grew out of the White House Task Force on Organizing and Empowerment, which the Biden administration established by executive order in April 2021. The month before, in March 2021, the U.S. House of Representatives passed the Protecting the Right to Organize (PRO) Act. The PRO Act would make it easier for unions to organize at work and restrict how businesses respond to organizing efforts, HR Dive reported last year.
While the bill has stalled in the Senate, HR pros should be aware of other changes affecting how employers respond to unionizing efforts. Nationally, employee interest in unions has spiked, according to an August 2022 report from Jobcase. Seventy percent of skilled and hourly workers in the U.S. said they would consider joining a union if given the opportunity, the findings revealed. Union petitions are also on the rise, the NLRB announced in July. The number of petitions being filed went up 58% during the first nine months of fiscal year 2022 (October 2021 through June 2022) compared with the first nine months of FY 2021, HR Dive reported.
Coinciding with the rise in union petitions, charges of unfair labor practices (ULP) have also increased, up 16% in FY 2022 from the same time period in FY 2021.
To put the uptick in context, it’s important to understand that any member of the public can file a ULP if they believe an employer violated the National Labor Relations Act, an NLRB announcement about the data explained. An employer violates the NLRA, or commits a ULP, when it interferes with employees trying to exercise their rights under the statute. For example, employers may not take adverse action against employees for engaging in group action to address their working conditions or for trying to form a union, according to the DOL’s employer.gov website.
One frequent issue involves the wearing of union buttons, stickers or clothing with union logos. In August, the Democratic-led NLRB ruled 3-2 that Tesla violated the NLRA by requiring employees to wear shirts with printed Tesla logos while prohibiting them from wearing shirts with union logos, HR Dive reported. Tesla allowed employees to wear union stickers and didn’t prevent them in the past from wearing clothing with other logos. But during a union organizing campaign at a California assembly facility, it began strictly enforcing the policy.
Notably, in the Tesla case, the NLRB overruled a 2019 decision upholding Walmart’s dress code. The 2019 panel, staffed 3-1 by Republicans, used a more employer-friendly standard to rule in Walmart’s favor. The Tesla panel rejected the standard.
Retaliation is also on the feds’ radar. Shortly before the Tesla decision, a federal district court in Tennessee granted the NLRB’s request for an injunction against Starbucks to reinstate seven union activists, according to an NLRB announcement. The injunction came out of a ULP the NLRB filed against the company for allegedly firing the workers because of their organizing efforts, the announcement said.
Misclassifying employees as independent contractors is a third red flag for the feds. The NLRA doesn’t protect the latter. In July, the NLRB joined forces with the Justice Department and the Federal Trade Commission to enforce worker protections against misclassification, according to the NLRB’s announcements.
The PRO Act would bolster these protections. In arguably the most controversial provision, the bill would expand the current definition of “employee” to include many workers who are currently treated by employers as independent contractors, an expert previously told HR Dive.
