Is Your Company Prepared For A Changing Labor Law Landscape?

To watch the national news is to get the impression that workplaces across the U.S. are unionizing more than ever. Dramatic labor fights at Starbucks and Amazon have employers with Virginia workers wondering what to expect next. Are we going to see more union activity in Virginia?

According to the Bureau of Labor Statistics (BLS), the nationwide unionization rate has been relatively flat at approximately 10.3% since 2019, which is about half of what it was forty years ago. Historically, Virginia has not been regarded as union territory, especially when compared to our neighboring states to the north and west. In fact, in 1947, Virginia was among the first states to adopt a “right-to-work law,” which generally prohibits labor unions and employers from requiring workers to pay union dues as a condition of employment. And even today, BLS reports that only 4.4% of Virginia’s workers are members of unions, compared to 13.1% of Maryland’s workers and 10.7% of West Virginia’s workers.

The times may be changing, however… .

According to an August 2021 Gallup poll, 68% of Americans now approve of labor unions—the highest public sentiment measured since 1965. And in 2020, Virginia granted localities the freedom to bargain collectively with public-sector workers, undoing a forty-year-old prohibition. Coupled with all of the Starbucks and Amazon press, employers should expect more Virginians to become aware of their rights under the National Labor Relations Act (NLRA), which apply to workers even if they are not members of a union. Accordingly, all signs suggest that Virginia employers need to be prepared for a changing landscape in federal labor law and the potential for heightened scrutiny by the National Labor Relations Board (NLRB) with respect to labor practices.

Non-union workplaces are not exempt from labor laws. Even if Virginia doesn’t become a hotbed of union activity, the NLRB is still quite active here. Employers in our area should understand the NLRB has indicated it will aggressively pursue workers’ rights even if an employer does not have a unionized workplace. The NLRA protects workers, union and non-union alike, who engage in “protected, concerted activity.” This activity could mean talk between co-workers about wages and benefits or other working conditions, circulation of a petition asking for better hours, participation in a concerted refusal to work in unsafe conditions, and co-workers jointly talking directly to their employer, a government agency, or the media about problems in the workplace. Under the NLRA, employees can do these things without employer interference or retaliation. It does not matter if employees are unionized or not.

Under the Biden administration, the NLRB’s posture is aggressive. The NLRB’s leaders are White House-appointed and Senate-approved, and thus often change when the White House changes hands. After the Biden administration took control of the NLRB, its General Counsel’s office released a handful of memoranda overturning Trump-era precedents and expanding significantly the types of damages the NLRB will pursue against employers who violate the NLRA. For example, if a worker was found to have been wrongfully terminated because they talked to the media about problems in the workplace, the NLRB might not only pursue back wages, but also health care expenses incurred as the result of lost insurance, and credit card, mortgage, or car loan late fees incurred as the result of lost income.

Widely-used union avoidance tactics face intense NLRB scrutiny. The NLRB recently moved to ban mandatory workplace anti-unionization meetings, which has been one of employers’ primary ways of avoiding unionization. According to the NLRB, when employees are “forced to convene on paid time” or are “cornered by management while performing their job duties” to hear anti-union talk, then in both cases, “employees constitute a captive audience deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge or other reprisal”—a threat that, according to the NLRB, employees may reasonably perceive even if it is not stated explicitly.

Failure to bargain has severe consequences. If employees attempt to organize at your workplace and you unlawfully fail to bargain, the NLRB may seek the imposition of bargaining schedules, periodic progress reports to the NLRB, a 12-month post-certification “freeze” on challenging a union’s status, reinstatement of any “unlawfully withdrawn” bargaining proposals, and engagement of a Federal Mediation and Conciliation Service (FMCS) mediator, to name only a few adverse consequences.

Settling unfair labor practice charges will be harder and the terms will be worse than before. Employers will have less ability to settle with the NLRB, as Regional Directors now are allowed to seek no less than 100% of the back pay and benefits owed, consequential damages, and front pay if an employee waives reinstatement. Additionally, the NLRB mandated the use of a heavy-handed default “cure” procedure. Employers will be deemed to admit liability in the event of default under a settlement agreement for a period of only 14 days.

In summary, the NLRB appears eager to increase its role and relevance in the day-to-day workplace. Employers in our area should expect to see more aggressive legal positions taken by the NLRB, especially concerning damages and settlement terms. Accordingly, we recommend that employers stay abreast of these matters and make sure their managers are trained to take on the challenges of the changing labor law landscape.