The National Labor Relations Board (NLRB) has proposed joint employment regulations. The U.S. Court of Appeals for the District of Columbia Circuit has decided that OSHA cannot be compelled to issue a permanent COVID-19 standard to protect healthcare workers. Legislation has been introduced in both the Senate and House of Representatives that would support the right to unionize while several federal agencies have issued a digital unionization kit designed to assist employers who have workers expressing interest in unionizing.
NLRB Issues Joint Employment Regulations – The National Labor Relations Board (NLRB) has issued proposed regulations concerning joint employment and comments will be accepted until November 7, 2022. The proposed rule rescinds and replaces the joint employer rule that took effect on April 27, 2020. In issuing the proposed rule, NLRB chair Lauren McFerran stated, “In an economy where employment relationships are increasingly complex, the Board must ensure that its legal rules for deciding which employers should engage in collective bargaining serve the goals of the National Labor Relations Act.” The Department of Labor also is considering whether to issue joint employment regulations.
According to the NLRB, “the proposed rule reflects the Board's preliminary view … that the Act's purposes of promoting collective bargaining and stabilizing labor relations are best served when two or more statutory employers that each possess some authority to control or exercise the power to control employees' essential terms and conditions of employment are parties to bargaining over those employees' working conditions.” The proposed rule would define the phrase essential terms and conditions of employment to include such items as wages, benefits, hours of work, scheduling, hiring/firing, discipline, health and safety, work assignments and work performance rules. The proposed rule would provide that merely possessing the authority to control the essential terms and conditions of employment whether control is exercised or not, exercised indirectly or exercised through an intermediary would be sufficient to establish status as a joint employer. The party claiming an employer is a joint employer would under the proposed rule have the burden of establishing the existence of a joint employment by a preponderance of the evidence.
OSHA Not Required To Issue Permanent COVID Healthcare Standard – The United States Court of Appeals for the District of Columbia Circuit denied a request by National Nurses United and other nurses unions for a writ of mandamus to compel the Occupational Safety and Health Administration (OSHA) to: issue a permanent healthcare standard superseding the emergency temporary standard (ETS) it issued in June 2021 that was designed to lessen the risk of COVID-19 transmission; retain the ETS until there is a permanent standard; and enforce the healthcare ETS. The court concluded in this decision that ”While OSHA has a clear duty to follow an ETS with a rulemaking proceeding, OSHA does not have a clear duty to promulgate a permanent standard at the end of that proceeding.”
In issuing the ETS, OSHA determined that exposure to COVID-19 presented a grave danger to healthcare workers making the ETS necessary in order to protect them in healthcare occupational settings. In December 2021, OSHA announced its intention to withdraw the healthcare ETS because it was unable to complete the necessary notice and comment procedures within the six-month timeframe set forth in the law. OSHA recognized that COVID-19 still posed a threat to healthcare workers and stated that it would continue to work on developing a final standard and, until that occurred it would rely on its general standards to help protect healthcare workers. The court noted that while OSHA had to undertake a notice and comment period when considering a permanent standard, the process could result in determining that a permanent standard is not necessary.
Nationwide Right to Unionize Act Reintroduced – Senator Elizabeth Warren (D-CA) and Representative Brad Sherman (D-CA) along with a number of cosponsors reintroduced the Nationwide Right to Unionize Act (S. 4803, H.R. 8793) that would support the right to unionize by prohibiting states from banning union security agreements through “right-to-work” laws. The legislation would repeal the authority under the National Labor Relations Act (NLRA) to enact laws prohibiting agreements requiring membership in a labor organization as a condition of employment.
According to the sponsors, 27 states have enacted right-to-work laws that prevent unions from collecting dues from non-union members who are covered under a union-negotiated contract. The sponsors believe that these laws make it more difficult for workers to form unions. Citing data from the Bureau of Labor Statistics (BLS), Representative Sherman stated that on average, wages in labor rights states are $11,059 per year or 17.1% higher than in right to work states. The bills have been referred to the Senate Committee on Health, Education, Labor and Pensions and the House Committee on Education and Labor. The House Education and Labor Committee held a hearing on September 14th on removing barriers to organizing.
Federal Agencies Release Digital Unionization Toolkit – The Department of Labor has joined with the Small Business Administration, the National Labor Relations Board, and the Federal Mediation and Conciliation Service in releasing a digital toolkit for employers seeking guidance on responding to their employees who are interested in forming or joining a union. Secretary of Labor Marty Walsh stated that “Worker interest in forming unions is higher than we’ve seen in decades, and this resource will be an important tool in helping employers respond positively to worker organizing campaigns.” The toolkit was developed following the first report of the White House Task Force on Worker Organizing and Empowerment that contained recommendations as to how federal agencies could implement policies and programs designed to encourage workers to unionize and bargain with their employers.
The toolkit contains information and resources on the following topics:
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.