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Attorneys

U.S. Government Agencies: Santa or Grinch?

December 19 2014

By Brendan J. Begley

Just in time for the holidays, the National Labor Relations Board (“NLRB”) and the U.S. Department of Labor (“DOL”) have delivered additional workplace protections for workers and prospective unions this month.  Whether those government agencies are viewed as Santa or the Grinch coming down workplace chimneys depends upon one’s perspective.

Specifically, the NLRB gave a sugary treat to unions and employees who want union representation by ruling in early December that, under most circumstances, workers must be permitted to use their employers’ email systems for purposes of union-organizing activities.  Then, in mid-December, the NLRB stuffed the stockings of unions and employees who desire union representation by issuing a final rule shortening the time to hold an election to determine whether a majority of workers want to be unionized.

Many employers worry that this speedy-election change, which becomes effective on April 14, 2015, will diminish management’s ability to stage an anti-union campaign prior to voting.  As such, employers who are concerned about unionization likely will focus on year-round anti-union avoidance programs, instead of anti-union campaigns that commence only upon the filing of a representation petition.

Next, as though flying from one significant decision to another behind a team of reindeer, the NLRB issued complaints alleging that McDonald’s USA LLC, a franchisor, and a number of its franchisees committed labor law violations.  In particular, the NLRB accused these “joint employers” of violating the rights of employees who engaged in protected conduct to improve working conditions by participating in nationwide protests.  According to the franchisor, the NLRB’s complaints “improperly and dramatically strike at the heart of the franchise system,” and amount to overreaching by the agency.

Between those developments, the DOL issued final regulations barring discrimination against lesbian, gay, bisexual, and transgender employees and applicants by federal contractors and subcontractors.  Those regulations have been highly anticipated to implement a Presidential Executive Order issued in July prohibiting such discrimination.

While those regulations were long expected and welcomed by many, their issuance this month was greeted by some with some bah-humbug grumbles because the DOL delivered them without providing an opportunity for public comment.  In a related development, the U.S. Department of Justice released a memo on December 18 indicating that the U.S. government can now file claims against employers on behalf of workers who allege that they were discriminated against because of their transgender status.

The takeaway from these developments is that employers will face a sleigh-full of significant and unfamiliar challenges in the New Year.  To promote the chances for prosperity and happiness in 2015, employers should consider seeking advice from legal counsel to ensure that their policies and practices do not run afoul of these new legal guidelines.