The Pandemic’s Effect on Labor Law

Strategies for Implementing Workplace Change Related to COVID

• The first step is to take a look at your labor agreement.
• The next step is to put the union on notice about the changes you would like to see.
• Since COVID has hit, unions are working with employers with less conflict because both sides understand the importance of employees and a majority of the time, companies are trying to do right by their employees during the pandemic. 
• Engage the union, be upfront and active with them about any changes the company plans to make. 
  • Even if the changes are already allowed under the labor agreement, communication with the union during the pandemic is a good idea to keep both sides in the know. 

Requests from Unions

• The types of requests have changed from the start of the pandemic in March & April to now.
• Back at the beginning of the pandemic, hazard pay, expanded leave, attendance policies, were all very common requests especially in the hospitality and healthcare sectors and in areas in which schools had shut down. 
• Now we are starting to see a lot more requests concerning PPE and mask mandates.
• Unions have also been requesting information on changing policies that stem from updated legislation since the pandemic hit. 
  • Leave pay is a big factor in these requests.
• Unions are also asking for notification if/when any of their members in the workplace test positive for COVID-19.
  • This information is not necessarily individual names, but more generic information like shift, location, etc. so that any possible employees who may have been in contact with that person can be notified and the area can be cleaned thoroughly. 
• Standing requests on when an employee tests positive may be utilized by unions as well and Mr. Pryzbylski suggests that companies come to an agreement with unions on how often that information must be provided.
  • Under the NLRA, employers have an obligation to respond to standing requests, but an agreement can be reached to develop a schedule that works for your company. 
• Some tips for dealing with union requests:
  • Set expectations with the union. 
  • Memorialize your responses in writing. 
  • Be upfront with unions regarding policy changes that will affect their members - this will lead to easier interactions and more cooperation moving forward.

NLRB Guidance

• Peter Robb issued a memo in March of 2020 that said employers should be privileged in emergency circumstances to take unilateral action. 
  • This memo has a caveat that if the employer takes unilateral action, they must honor their duty to communicate that action with the union.  
  • Previous NLRB memos can be found here.
• The last worldwide pandemic (Spanish Flu in the early 1900s) predates the NLRB so many best practice advice from the NLRB is brand new.
• The March memo cited some case law from situations in which natural disasters have occurred and other events like 9/11.
• On the NLRB website, it is possible to view advice memorandums that have been issued by the NLRB General Counsel to the various regions. 
  • These contain advice on whether or not a violation of the NLRA has occurred in certain situations for employers to learn from. 

COVID & The Negotiation Process

• Between the months of March-May, many negotiations were postponed.
• It has been a challenge to engage in negotiations throughout the pandemic. 
• Some unions have been adaptive to Zoom or other video style negotiation meetings but some have not. 
• Most contract negotiations were punted. 
• An important aspect of union negotiations is the in-person subtleties like body language and physical cues which are not easy to pick up on over video. 
• In some circumstances video chats will work if there is no alternative. 
• Flexibility is key for negotiations during this pandemic.  

Workplace Health & Safety

• Unions will have provisions in their labor agreements that allow them access to the work facility upon request.
  • This often includes details like who can be there, when they can be there, etc.
  • Companies will have to abide by this provision even through COVID.
• NLRB has generally said that unions should be allowed some access to the working site of their members, so companies should not flat out deny access.
• If there has been a recent outbreak, discussions can be had with the union about being present at the working site.

Organizing in the Pandemic

• There has been an increase in organizing in the pandemic. 
• There has been an unprecedented amount of interest in organizing this year. 
  • Even though there has been increased interest, the petitions are lagging some.
  • In Q1 of next year we will likely see a large amount of petitions filed. 
• Union elections have also been affected by the pandemic, specifically how the elections are carried out. 
  • In-person elections have decreased significantly, but mail-in balloting has increased. 
  • For traditional in-person voting, there is complete anonymity. With mail-in voting, there is less anonymity. 
  • Mail-in voting has some serious downsides for employers because the voting process cannot really be monitored. 
  • Unions are now winning about 72% of mail-in elections which is slightly better than the rate at which unions were winning in-person elections (70%).
• The way employers communicate with employees about union organizing must adapt to the changing climate of the labor landscape during the pandemic. 
  • This is one of the most important factors for employers to help educate their employees and avoid union organizing. 

Strike Action During the Pandemic

• There has been an uptick in the number of strikes in 2020.
• There have also been zero employer lockouts in 2020. 
• The most effective way to avoid a strike is to get buy-in at the table with a union. 
• Unions were likely expecting bad news at the table in 2020, but the employer communicating this bad news effectively with the union is key to avoiding strike action.
• Getting the buy-in, communicating, explaining, and stressing why the employer is proposing what they are proposing is incredibly important. 
• Another way to help avoid any strike action is for employers to ensure that they are communicating with their employees about how much those employees are valued in a genuine way.

The CARES Act and Loan Programs

• These loan programs apply to employers who employ between 500 and 10,000 workers. 
• If a loan was taken out under the CARES Act, an employer who meets the number of workers criteria will have to remain neutral in the event of union organizing. 
  • This likely means that the employer cannot talk negatively about the union or discourage their employees from joining a union.
  • If a company wants to remain union-free but has taken out one of these loans, it is important to be proactive with your employees so there won’t ever be a situation in which the employees would be interested in organizing. 
  • For employers who are represented by a union and they took out a loan under the CARES Act (same employee count threshold applies), they cannot abrogate the collective bargaining agreement for the duration for the duration of the loan plus two years. 
• The Department of the Treasury has yet to release guidance on these provisions.

Legal Changes in 2021

• With Joe Biden coming into office, we can anticipate some type of additional legislation that is similar to what we saw introduced in March and April of 2020 at the start of the pandemic. 
  • This includes legislation that gave employees certain paid sick leave plus more, and that legislation will likely be extended into 2021 and/or expanded. 
• If the Democrats win the Senate, we can likely anticipate expanded leave benefits, expanded pay requirement for employees who are off due to COVID positivity or school closures.
• The PRO Act is a piece of legislation that could become law in 2021 and it has a significant impact on employers. 
  • Projections’ article on the PRO Act and its impacts can be found here.
• Companies should get out in front of employee relations and do things like recognizing employees for their work and develop a strong culture. 

Barnes & Thornburg

• Currently offering biweekly webinars to help companies deal with the challenges the pandemic presents, and wIll likely be continuing into 2021.
• COVID-19 resources from Barnes & Thornburg can be found here.
• Barnes & Thornburg’s website features their blog and much more. 

David Przybylski Backstory

• BA in Rhetoric, French, & Psychology from Wabash College 
• JD in Law from the Indiana University’s Robert H. McKinney School of Law

Mr. Przybylski has been with Barnes & Thornburg, LLC for over 12 years, and currently serves as a Partner specializing in Labor & Employment.

Contact

• David Pryzbylski’s email: David.Pryzbylski@btlaw.com
• David Pryzbylski on LinkedIn