Changing Administration: Prevalent Issues in Labor Law

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Attorney Harrison Oldham

Recently, labor laws (meaning laws that are traditionally viewed as applying to unions) have not impacted large swaths of the working world.  However, with the election of President Biden, that could change.  President Biden has been a long time supporter of organized labor, and that, coupled with control of both houses of the U.S. Congress by the traditionally labor-friendly Democratic Party, could signal significant changes to the field of labor law.


Those changes, if they are to occur, will likely start with the National Labor Relations Board (“NLRB” or “Board”), which oversees and enforces U.S. labor law in relation to collective bargaining and unfair labor practices, including the rights of employees to engage in “protected concerted activity.”  The NLRB is governed by a five-person board and a General Counsel, all of whom are appointed by the President with the consent of the Senate. Board members are appointed to five-year terms and the General Counsel is appointed to a four-year term.  The General Counsel acts as a prosecutor for the Board.  On January 25, 2021, President Biden designated Peter Sung Ohr, Regional Director of Region 13 in Chicago, to serve as Acting General Counsel of the NLRB.


With that, the Board is already undergoing changes and will continue to do so as current Board member terms expire over the next several years.  So even if you do not work in a “unionized” environment, this could be worth your time, so read on, to learn a bit more about several labor law policies that employers can expect with the Biden Administration.


Employee Definition


            According to the National Labor Relations Act (“NLRA”), “employees” have a number of rights in the workplace, including the right to attempt to form a union where none exists. Employees who are not represented by a union also have rights under the NLRA.  So as you can imagine, the definition of “employee” is very important.


One item the Board is expected to address is the current employee vs independent contractor as it applies to workers in the “gig economy,” with the goal being to bring those individuals under the Board’s jurisdiction as “employees”.  The gig economy is the labor market of short-term contractors or freelance work. Previously, the Department of Labor and the NLRB has stated that workers in the so-called “gig,” on-demand,” or “sharing” economy are independent contractors, not employees. That was a significant departure from Obama-era policy.  However, it is now expected that things will shift back the other direction.  There is also an urge to extend the NLRA to cover supervisors, or to significantly narrow the definition of supervisor. The former would require legislation and the latter could be accomplished to some degree by Board decision.


Joint-Employer Definition


Democrats wish to undo the Republican led Board’s joint-employer rule by restoring the previously applied broad definition of “joint-employment”. One of the first steps the new administration likely will take is to roll back the business-friendly rule announced by the DOL on Jan. 6, 2021, to determine whether workers are employees under the FLSA. The new rule focuses on the “economic realities” of the work arrangement and, in particular, whether the putative employer has actual control over the worker. The rule is scheduled to take effect on March 8, 2021, but it may be short-lived because President Biden is expected to issue a memorandum freezing this rule before it takes effect. The Biden Administration will almost certainly return to the broader standard in place during the Obama Administration, allowing an employer-employee relationship to be established based on “indirect control” over the worker.



Penalties & Remedies


It is widely expected that the new administration will allow for more significant penalties to be imposed for labor law violations.  Specifically, there is a strong yearn to impose compensatory and even punitive penalties for labor law violations. Current discussions include the addition of monetary penalties, double or triple backpay awards, tort-like damage claims, increased use of bargaining orders, federal contract debarment, attorney’s fee awards, liability for officers and executives, and other criminal penalties. At the minimum there will most likely be new or revised provisions for monetary penalties.  Additionally, it is expected the newly appointed acting General Counsel will seek injunctive relief in unfair labor practice cases.


Cabinet Level Oversight


In addition to the changing landscape of the NLRB, President Biden has stated that he will create a cabinet level working group with the sole focus of promoting union organizing and collective bargaining. The group has the responsibility of delivering “a plan to dramatically increase union density and address economic inequality”. The Biden administration has stated that “In the first 100 days of the Administration, the working group will deliver a plan to dramatically increase union density and address economic inequality.”


Additionally, the group will apparently consider whether there are areas where the federal government could waive preemption of the NLRA to allow cities and states to pursue their own ways to increase union organizing and collective bargaining without impacting current work-place laws. The group will also be tasked with working with unions and trade associations to further explore the expansion of collective bargaining, where all competitors in an industry are engaged in collective bargaining with a single or multiple union.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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