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Heightened Labor Scrutiny Looms Over Workplace Rules

A recent National Labor Relations Board decision will likely expose a broader range of workplace rules to regulator enforcement. According to this HR Dive article, introducing even ordinary workplace rules during unionization could draw new scrutiny. However, as Christopher Foster and Marjorie C. Soto Garcia explain, there are steps employers can take to mitigate risk.

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Managing Your Workforce During Market Volatility: Labor and Union Issues

Corporate transactions and investments involving union issues require concrete analysis of risk, contingencies and game plans. In a January 31, 2024, webinar, McDermott’s Labor and Employee Benefits Groups will focus on practical steps and strategies to successfully navigate and evaluate key considerations for transactions involving unionized businesses.

Discussion topics include:

  • Union notice and bargaining triggers
  • Successorship, neutrality and organizing issues
  • Multiemployer pension, withdrawal and other benefits considerations

Register for the webinar here.

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NLRB Attacks Non-Disparagement and Confidentiality Clauses in Employee Releases, Severance Agreements

Employers, especially in the context of workforce reductions, may provide departing employees with severance agreements in exchange for a release. Those agreements often include non-disparagement clauses and confidentiality clauses regarding the terms and the amount of the agreement. On February 21, 2023, in McLaren Macomb, the National Labor Relations Board held that such clauses infringe on employees’ rights under the National Labor Relations Act. Importantly, McLaren applies to both unionized and non-unionized workplaces alike.

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What You Need to Know About the PRO Act

The Protecting the Right to Organize Act (PRO Act) passed the US House of Representatives for a second time this March. If it’s signed into law, the legislation would eliminate state right-to-work laws, increase the number of workers eligible for collective bargaining and ban mandatory arbitration agreements.

In this video, McDermott partner Ron Holland breaks down the PRO Act’s most significant changes to employment law.

Visit McDermott’s resource center to learn more.

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Multiemployer Pension Plans: Addressing the Issue of Underfunding

A significant issue facing many business owners is the impact of underfunded multiemployer pension plans. This is most common, but not exclusive to, unionized businesses. McDermott Partner and Global Head of the Firm’s Employee Benefits and Executive Compensation Practice Group Todd Solomon joins Domenic Rinaldi, owner and managing partner of Sun Acquisitions, for a recent episode of the M&A Unplugged Podcast to talk about multiemployer pension plans and discuss proactive steps owners can take to get ahead of future issues regarding pension participants.

Access the podcast.

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The Art of Using Preemption to Defend Wage-and-Hour Cases

Preemption technically means situations where federal law displaces state law: a function of the supremacy clause of the US Constitution. Often, lawyers speak of preemption even where it is one federal law displacing another or one state law displacing another. When statutory laws abut or overlap like tectonic plates, which should apply?

As large-scale cases proliferate under federal and state wage-and-hour laws, there is more and more reason to study plate tectonics for potential defenses. Thinking about preemption requires looking beyond the intricacies of the case at hand to broader issues of public policy; applying preemption as a defense requires thinking about more than the statute alleged in the complaint.

Finding preemption, like throwing the Eephus pitch, is an arcane but game-winning skill. Learn how to find it in this article from Michael Giambona.

Access the full article.

Originally published by Law360, April 2019.

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4 Things to Watch After the High Court’s Body Blow to Labor

Kevin Connelly said unions will face an adjustment period as they seek to implement more creative methods of trying to retain dues-paying members. “I wouldn’t underestimate the unions. If someone wants to say this is the end of the day for public-sector unions—nope, not true,” he said. “There will be consequences, but I think the unions that operate in that sector will be clever enough to make the appropriate adjustments.”

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Originally published by Law360, June 2018.

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Companies Should Brace Themselves: It’s Going To Be Easier and Faster to Unionize America

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap

Recently, the National Labor Relations Board (NLRB) proposed new rules purportedly intended “to reduce unnecessary litigation” and streamline pre- and post-election procedures. The bottom line is that these new rules, if adopted, will make it easier to unionize American workforces.  One way the new rules “streamline” the unionization process is by requiring the exchange of timely information, including employee contact data and required forms. The proposed rules also aim to defer potential litigation until after an election has been held, so that proceedings related to litigation do not slow down the election process, which will limit the opportunity for the employer to present its views regarding the issues. Given these proposed rules, American businesses may likely step-up union avoidance efforts.

The U.S. Department of Labor (DOL) simultaneously has released a new proposed rule that appears designed to discourage such union avoidance efforts. Under this proposed rule, an existing exemption from certain disclosure requirements for “advice” would be significantly narrowed such that employers would be required to disclose arrangements with consultants that draft communications on behalf of an employer designed to “directly or indirectly persuade workers concerning their rights to organize or bargain collectively,” even when the consultants do not contact employees directly. Under the proposed rule, the DOL said employers should disclose information about “union avoidance” seminars and trainings offered to employers by lawyers or labor consultants, because theses seminars “involve reportable persuader activity.” The DOL is warning employers against classifying such seminars as “advice” to avoid disclosure under the exception. 

The combined NLRB and DOL efforts appear to be a governmental one-two punch aimed at American business – they make it easier for unions to organize workplaces on the one hand, and discourage union avoidance efforts on the other. Fortunately, however, we suspect corporate America will not be so easily discouraged, because it could be far more costly for companies to skip the union avoidance training, now that the NLRB has helped grease the skids toward organizing American workplaces. On balance therefore, we expect companies still will elect to move forward with the training, and just be mindful of their disclosure obligations, assuming these proposed rules go into effect.

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