Joe Biden recently referred to himself as “the strongest labor president you have ever had.” If elected, what could this mean for employers? Areas like overtime, paid time off and union organizing and activities will likely take an immediate and dramatically different course if there is a change in the White House.
This podcast looks at the decisions and trends under the Trump Administration and anticipates the areas where a strong pro-labor administration would make change.
Welcome to Jackson Lewis's podcast We get work™. Focused solely on workplace issues everywhere and under any circumstances, it is our job to help employers develop proactive strategies, strong policies, and business oriented solutions to cultivate a workforce that is engaged, stable, and diverse.
Our podcast identifies the issues dominating the workplace and its continuing evolution and helps answer the question on every employer's mind. How will my business be impacted? Presidential candidate Joe Biden recently told AFL CIO members that he would be "the strongest labor president you have ever had." If elected, what could this mean for employers? Areas like overtime, paid time off, and union organizing and activities will likely take an immediate and dramatically different course if there is a change in the White House. This podcast will look at the decisions and trends under the Trump Administration and anticipate areas where a strong pro-labor administration would make change or put more simply, the American labor movement.
Speaker 1 (01:20):
What's next? Our hosts today are Suellen Oswald and Daniel Schudroff. Suellen is a Principal in the Cleveland, Ohio, office of Jackson Lewis and a co-leader of the firms Staffing and Independent Workforce industry team. With more than 25 years’ experience in nationwide labor and employment law, Suellen is an experienced, trusted labor negotiator who has worked with international conglomerates, Fortune 100 companies, as well as medium and small businesses. Dan is a Principal in the New York City office. His practice is focused on traditional labor matters, employment litigation, and counseling. His interest in labor law developed at age 11 when his beloved New York Yankees were unable to play in the 1994 World Series, which was canceled because of a work stoppage. Intrigued by collective bargaining from that point forward, Dan studied at Cornell University School of Industrial and Labor Relations, and the rest as they say is history. Suellen and Dan, the question on everyone's mind today is what's next for the American labor movement and how will that impact my business?
Daniel Schudroff (02:32):
Good afternoon, everybody. Dan Schudroff along with-
Suellen Oswald (02:36):
Daniel Schudroff (02:37):
Hi Suellen, how are you?
Suellen Oswald (02:39):
Good. How are you doing this afternoon, Dan?
Daniel Schudroff (02:41):
All right. Well, we have an interesting topic today to talk about from the labor relations perspective and the labor unions and what might happen under a Biden administration. So just to get started, what are your thoughts on if the Biden administration were to come in, how would that change issues such as the incentivization of unionization?
Suellen Oswald (03:05):
What a great question and what a great time to be a labor lawyer. One of the first things that I think we would see from a Biden administration that employers would want to watch for is the abolition of secret ballot elections, meaning that unions would say if they have more than 50% of the employees who would be in a bargaining unit have signed cards asking the union to represent them, union would say rather than have a secret ballot election, which has always been the Board standard, you need to recognize us as the employees exclusive bargaining representative.
Suellen Oswald (03:41):
And I think this is troubling because at the point where employees may look at a card and consider signing it, they really know very little about the full impact of being represented by a labor union and through simple card check recognition, I think employees would be at risk because they don't have any idea what it involves. For example, they likely don't even know the cost of union dues at that point. And most employees don't understand that if they sign a card and ask for a union to represent them without knowing more, that all of the current wages and benefits are at risk and they're on the table for labor negotiations. So there are some serious pitfalls that could wait employees who don't understand the significance of signing a card. What do you think Dan?
Daniel Schudroff (04:29):
Suellen, it's funny you bring that up because as you mentioned before, it's a great time to be a labor lawyer. And whenever there is any type of change in the landscape, if there is going to be a change in the landscape at this point, it always makes us have to give advice to clients and to employers about what could be coming down the road. And I kind of come back to when I first started practicing, which was in 2008, when the Employee Free Choice Act or EFCA was out there and everybody thought that that was going to be the next big thing when the Obama administration took over at the beginning of 2009. Now, obviously it never got off the ground because of other, I think, concerns that the government had at the time. We were in the middle of the Great Recession and kind of find ourselves in a similar spot right now.
Daniel Schudroff (05:13):
So it never became law, but this is one of those things as you point out that the Biden administration, if it were to take over, could try to put back in and we always have to remember that Vice President Biden was vice president back when EFCA was first introduced and I believe he was even a Senator when it was introduced in 2007. So we could see a very, very quick restoration to something like that if there's enough of an appetite to go down that road. What other issues are you seeing as far as I know that there has been talk about when we were in the Obama administration about quickie elections and things like that? What are your thoughts on that?
Suellen Oswald (05:49):
Well, under the Trump administration, the NLRB had proposed new election rules and new in the sense that it was more a return to the traditional election process that was in place for decades before the Obama Administration's Labor Board made the changes and we ended up with quickie election rules. Rather than having the election so quickly under the rules proposed by the Trump administration, which had been in place before, important issues that needed to be taken care of before an election was ever held were resolved in pre-election hearings. And if the parties had an opportunity to present their arguments at a hearing to submit written arguments, which were very helpful to the regional directors in deciding these important issues, all before an election occurred.
Suellen Oswald (06:39):
As you know, under the quickie election rules, that wasn't necessarily the case and elections instead were held very rapidly. But I think it's very important that serious issues about elections be resolved upfront because a lot of these important legal issues affect actually who should be voting on election day. So I think it's much more pragmatic for our clients to have the opportunity to fully consider and present evidence on important elections issues, including who should be voting, and enable the Board to make decisions about the voters before the election is held. Tell us what it was like under the quickie election rules because it was very different, Dan.
Daniel Schudroff (07:26):
Yeah, that's right. And those quickie election rules went into effect in 2000, I believe it was 2015. So we were under for a period of about three or four years, we were under this system where most issues dealing with the types of issues you were just discussing were deferred until after an election. Pre-election issues were rare. They were the exception rather than the rule to litigate before an election. So what ended up happening is, is that elections would be scheduled typically anywhere between 21 and 25 days after a petition would be filed with the regional office. It was very quick and not only were employers trying to get organized to come up with a campaign strategy, but they were also trying to figure out whether or not there were any litigable issues and they were trying to figure out whether or not they would have to litigate anything or if they could even litigate anything.
Daniel Schudroff (08:21):
So they were fighting two battles at once and those rules have now been relaxed, as you mentioned before, under the Trump administration where there's a little bit more time and a little bit more room for an employer to figure out whether or not there are going to be any litigable issues pre-election and even the deadlines have been relaxed. It used to be under the Obama administration that if there was going to be a hearing on a particular issue or particular issues, pre-election hearing would be sometimes scheduled for, I believe it would be eight calendar days following the date the petition was filed. And with a weekend thrown in there and if the documents got to the wrong place first and the person who needed to know about it or the people who need to know about the issue didn't know first, you were really behind the 8 ball as an employer and...
Daniel Schudroff (09:03):
No first, you were really behind the 8 ball as and employer and it really put a lot of time pressure on things. So, if employers do head back that way, if the Biden Administration were to come back in, I think this is something that we could see quickly restored back to that whole framework of a more expedited procedure to get an election scheduled more quickly and to move a lot of the pre-election issues to the backend of the process after election.
Suellen Oswald (09:29):
And we know that unions enjoyed very high win rates under the quickie election rules, but I still believe it's important to get it right, because elections are a very, very big decision and they likely will affect an employee's future in the workplace in a significant way for decades to come. So, I still think it's very important to take the time to get it right.
Daniel Schudroff (09:52):
I agree. And if it means that the employer has the right to bring the issues into the litigate before the election, and if the Board even has a review, a regional directors decision before an election, that's right. It's important to get it right. Almost is like the replay rule in sports, let's make sure we get the right call just to make sure that everybody's on the same page. And that this is a permanent kind of thing. A union becoming certified, it doesn't just leave based upon a decision of a regional director or anything like that. So, it really is it's important to be on the same page and for everybody to be on the same page on that principle, not just let things go to pass and wait only afterwards if there's going to be something to litigate.
Suellen Oswald (10:36):
Another thing that I think might come under a Biden Administration, Dan, is elimination of the Right to Work laws that 27 of our 50 States have enacted. Since 1947, when the Taft-Hartley amendments were made to the National Labor Relations Act, states have had a statutory right to pass what are called Right to Work Laws. And under Right to Work Laws, there cannot be a labor agreement that requires employees to join a union or maintain a union membership as a condition of employment.
Suellen Oswald (11:13):
And in those 27 States, employees who work under labor agreements are not required to join and become union members. And unions are vehemently against Right to Work Laws because quite frankly, the lifeblood of labor unions is dues. So, when you can't require an employee to join and maintain a union membership, and the union's ability to collect dues is threatened. I mean, they actually refer to those employees as free riders and unions strongly believe that the Right to Work Laws should be abolished. And the current Biden platform favors abolishing Right to Work laws. So, if those laws were to be extinguished, what would it take, Dan, practically, at the federal level, in order for that to be accomplished?
Daniel Schudroff (12:07):
So, I think there would have to be an amendment to the National Labor Relations Act in order for that to happen. And that obviously requires a little bit more than just the Labor Board saying, "Hey, we want to change this landscape, so to speak." Obviously it would require both houses of the House of Representatives and the Senate to pass a Bill to amend the National Labor Relations Act. And then it would have to be something that would be signed by the President. I can't think of the last time, I think it was the 1974 amendments maybe, and they were dealing with the healthcare side of things or health care employers, the National Labors Relations Act, this is not a statute that easily is amended. But, again, this is one of those things that these are types of issues that could come up if a Biden Administration were to take over.
Daniel Schudroff (12:50):
And obviously, I think, for anything like this to happen, you'd have to have Democrats in all three places in, in both the House, the Senate and the White House for anything like this to even to get off the ground. But, this is not a new concept, as you mentioned before, the Right to Work laws and the NLRA from 1947, it's been like this for a while. So, there would be, I think, strong opposition, but maybe not an opposition to overcome a waiver of trying to change this law, but it would not be something that could just easily be gone.
Suellen Oswald (13:25):
Right. And in the last 10 years or so, several states have passed Right to Work laws, including Wisconsin and Michigan and Indiana and Kentucky and West Virginia. So, there has been an appetite for Right to Work statutes to be developed and passed in states even very recently. So, I agree with you, it would be a very contentious issue and be curious to see what might evolve if there were a Biden Administration.
Daniel Schudroff (13:52):
Right. And you even raised, I mean, some of those states that you just mentioned are battleground states in this upcoming election. So, it's an issue that could even be on voters' minds when they go to cast ballots between now and November 3rd.
Suellen Oswald (14:06):
Agree. So, how about you, Dan? What do you see in a Biden Administration where there could be some changes to the landscape such as on joint employers?
Daniel Schudroff (14:18):
Yeah, that's a good one. This has been an issue, the joint employer standard, it's a very, very difficult and abstract concept, I think, as a threshold matter. And it's complicated by the fact that it is a true ping pong, ping pong kind of issue where, depending upon who is in office, and I guess the compliment of the Labor Board is to how the standard will be applied. I mean, under the, we believe, I think you would agree with me, that if a Biden Administration were to come and starting in 2021, that we could expect to see the Browning Ferris decision return and the joint employer standard under that decision. And would basically codify the joint employer definition and expand the definition of joint employer under federal law to include employers who have indirect control or mere potential control, who don't actually exert actual control over the employees.
Daniel Schudroff (15:13):
And obviously that's a much greater standard and it brings many more employers under the potential definition of joint employer. And that was the gold standard, I guess, of the Browning Ferris decision back in 2015, which then subsequently was reversed under the Trump Administration. But, you can see how this is an issue and even at the Labor Board. It's gotten up to the DC Circuit, back down for the Board to consider more of a review. Really is something that because of, it really does become a political issue, because I think it is a big business issue that could be one of the first things if a Biden administration were to come in, were to fall or to revert back to the old standard.
Suellen Oswald (15:55):
And the mere potential to control is such an fact intensive examination. That, number one, it takes a tremendous amount of time and resources to litigate an issue like that. And, number two, when the standard is mere potential, that is an extremely low threshold from which few employers may find that they're actually able to escape. So, I think a lot of employers would be caught in the net of a return to the Browning-Ferris standard from 2015.
Daniel Schudroff (16:28):
Right. I remember even we would be asked by clients, what do you do about that? Can you put anything in an agreement, in a user supplier agreement? The funding in both, we represent both the user employer and the supplier employer under those circumstances. Oftentimes the answer would be is, even what you put in the agreement may not be enough because what happens in practice is different than what's in the agreement. And nothing is going to stop anybody from asserting a claim on that ground that that particular entity is in of itself a joint employer. So, you're right. It casts a wide net and that wide net encompasses a lot of people and a lot of employers.
Suellen Oswald (17:03):
And even if you would have some kind of indemnification language that likely isn't what most employers want. Most employers want a standard that is easily understood, so that they can abide by it. And a standard that includes a mere potential to control, I think everyone agrees, is very nebulous and fraught with litigation and tremendous downsides for employers.
Daniel Schudroff (17:28):
Absolutely. So, what else are you thinking of when you think of a possibility of a Biden Administration? What about with Federal contractors? What are you thinking about that with respect to labor relations and how labor law might be impacted by that?
Suellen Oswald (17:47):
There has definitely been movement and interest in the Biden camp to consider that federal contractors maintain neutrality during the course of union organizing. And that means, no negative statements, no statements to discourage employees as...
Suellen Oswald (18:03):
Negative statements, no statements to discourage employees as they determine whether or not they may want to vote for an election. And once again, employers have the right under the National Labor Relations Act to exercise free speech during organizing campaigns. And to be bound up in complete neutrality and no negative comments, no discouraging of employees is once again, one of those standards where you can cast a wide net and catch a lot of folks allegedly making a statement that could be perceived as negative.
Suellen Oswald (18:33):
But for federal contractors, it would be an especially harsh penalty because a Biden administration would anticipate long-term debarment, meaning they cannot bid on or accept federal contracts during a certain period of time if they were to violate the standard. Now, it's pretty significant for the many, many companies that are big federal contractors. And prohibiting, for example, the captive audience speeches that employers want to make to employees so that they understand the risks of collective bargaining that we alluded to earlier in our discussion, would be prohibited under a standard like that.
Suellen Oswald (19:10):
So that's a pretty significant tool that employers like to use because employers want to educate employees on what's at risk because oftentimes that's not what the unions are explaining. And employees are confused and they're without sufficient information, I think, to make an informed decision.
Daniel Schudroff (19:30):
You know, it's interesting you mention that, because I know you and I have talked about this case in the past, but with respect to captive audience speeches under section 8c of the National Labor Relations Act, we often see this. And you know, I sit in New York City, so I see that even where the federal government may be controlled by Republicans, we have the state mobile is controlled by Democrats. Have you seen any of the cases, at least on captive audience in a state that has typically gone democratic? Have you seen any issues dealing with captive audience speeches and how that's been maybe addressed in litigation?
Suellen Oswald (19:59):
Yeah. Great question. I do a lot of organizing work around the country, and the state of Oregon currently has a law that among other things prohibits captive audience speeches, with significant financial penalties for employers who may violate that law. And that's been noticed for a number of years. There had not been a significant challenge to it until recently. Late last year, the NLRB General Counsel, Peter Robb notified the state of Oregon, that the Board believed that its prohibition on captive audience speeches infringed on federal labor law and federal policy. He asked the state of Oregon to withdraw the law. The state declined. So the National Labor Relations Board sued the state of Oregon. And that that litigation is ongoing now in federal court in Oregon.
Suellen Oswald (20:52):
And the issue has been briefed, not surprisingly. The NLRB argues that the law is preempted, meaning a state law cannot interfere with federal labor policy. And that's a very long-standing, long-recognized standard under the law. And the state of Oregon responded by saying, "Well NLRB, you don't have standing to contest our law because you don't have any employees who were affected by for example, our captive audience speech that cannot be conducted in this state."
Suellen Oswald (21:24):
So that case is pending. It's been argued, it's been briefed and we'll look forward to the decision that's rendered by the court there.
Daniel Schudroff (21:33):
That's fascinating from just a federalism standpoint and from a civil procedure standpoint and from a constitutional standpoint, just how that kind of thing can really kind of pan out. And it will be interesting to see how it will turn out.
Suellen Oswald (21:47):
It sure is. And you know, I've read recently Dan, about the thought that the Biden administration may want to ratchet up the risk for employers by increasing the risk of penalties for unfair labor practices and other perceived labor law violations. Can you talk to us a little bit about that?
Daniel Schudroff (22:06):
Yeah. This is a big one, Suellen. And this is the one that if it were to come to fruition, that would keep me up at night, so to speak.
Daniel Schudroff (22:15):
You know, we've talked about, or we've read that there's a possibility of enhanced penalties if an employer engages in unfair labor practice or bad faith bargaining, something where a violation of section 8a5 of the National Labor Relations Act, and even personal liability for corporate executives. And that could have a real significant impact on an employer.
Daniel Schudroff (22:39):
You know, section 8d if National Labor Relations Act talks about collective bargaining, but it also says the employer does not have to acquiesce to any particular union demand. But here, if there's a threat potentially, of personal liability for corporate executives, or there could be penalties for bad faith bargaining, it could encourage an employee to say, "Look, we don't want to deal with that particular problem that could be coming down the road, and we'll acquiesce to the particular proposal so that we don't have to deal with litigation and the prospect of a significant penalty on our hands."
Daniel Schudroff (23:12):
I mean, that's this thing that would make me very nervous as far as if I were a corporate executive and potentially overseeing a collective bargaining agreement or administrative collective bargaining agreement or something like that, and being subject to that problem. How about you? What are your thoughts on that, Suellen?
Suellen Oswald (23:30):
The Board has long been concerned about chilling an employee's right to make a full and free decision on whether or not to be represented by a union. That's been a focus of the Board for decades. But this proposal to hold executives personally accountable, including for criminal liability, for interfering with federal labor laws, that certainly sounds like it could chill the employer's right to exercise its free speech and to lawfully inform employees about their rights under federal labor law.
Suellen Oswald (24:08):
So I'm quite concerned about that. And it would be concerned about in whether the Board might strike that same balance and be as concerned about the executives who manage companies and make decisions as it has been about employees for decades, if employers were to cross the line and chill the employee's right to make a full and free decision.
Daniel Schudroff (24:29):
And you raised this to me earlier this week, when we were talking about this. But what would be the penalties for the unions if they were to engage in the same type of surface bargaining let's say. Let's call that the bad faith bargaining allegation, because section 8b3 of the act is the mirror image of section 8a5. I mean, have you seen anything where the Biden administration has said, "Well, what happens if a union engages in the same type of bad faith bargaining?"
Suellen Oswald (24:59):
I have not. I've been wondering when I was going to read about the penalties that the administration would implement for unions, for stalling in labor negotiations, or for other bad faith bargaining, or for otherwise improperly interfering with federal labor law. So we can only hope that that just hasn't been released yet. Because you know what, there has to be a balance, and folks are always looking for a balance because they're looking for fairness. And I think in a discussion like this, where employers would be subjected to what could be enormous financial penalties and executives to criminal liability, we need to consider whether that's a good idea. And if so, what would be the balance on the other side for union officials and union bargaining representatives who might engage in the same behavior?
Daniel Schudroff (25:50):
Very true. So I think we're getting to the point of our session where we're going to talk about some rapid fire issues. I want to kind of ask you some quick questions. Maybe you can ask me some quick questions about what we think is going to happen almost immediately, what's the immediate impact of the Biden administration.
Daniel Schudroff (26:07):
So, Suellen, what are your thoughts? What would be the first thing that you think would happen if a Biden administration were to take over effective January of 2021, from a labor law perspective, from an NLRB perspective, or just general labor landscape?
Suellen Oswald (26:20):
That's a great question. And one thing we'd have to consider is when would a Biden administration have a majority on the NLRB to make key changes. And the earliest that seems would be, even though there's one seat that's currently vacant, we would assume that a Biden administration would appoint a representative consistent with that party's beliefs, because that's typically what happens. But the next opportunity would be in August of 2021 when member William Emanuel's term is up. So as early as the end of August 2021, that would give a Biden administration a very quick opportunity to have a majority and take control-
Suellen Oswald (27:03):
... of federal labor policy. In addition, the Board general counsel, Peter Rob's, term is up in November of 2021, at which point of the Biden administration would likely appoint a general counsel more in keeping with its beliefs and its outlook on federal labor policy. So that's another very important timeline that would shake up federal labor law. And with those in place, I could see that the current state of the law on, for example, when a contract expires, that an employer can stop deducting union dues, I could see that that could change very rapidly under a Biden administration. The same way as, for example, in a new bargaining relationship guide. Under the Obama administration, employers couldn't discipline employees without bargaining with the union if they were in first term negotiations. So I think those are just two things immediately that come to mind that would change under a Biden administration.
Suellen Oswald (28:03):
How about you, Dan? What are you thinking about?
Daniel Schudroff (28:05):
So it's a great question. And in my mind, I could see that the workplace rules that we've been dealing with, policies that we review on a daily basis, where we take a look and we see whether or not the rule as stated, or the policy as stated, violates the National Labor Relations Act because it could be construed to infringe upon an employee's right to engage in what we call "protected concerted activity." Under the Obama administration, pretty much we had to take the view that most rules, if they really tried to regulate any kind of behavior, improper conduct, we're likely going to be viewed as improper and unlawfully overbroad.
Daniel Schudroff (28:50):
The Trump administration came out with a case called Boeing back at the end of 2017, which changed that standard and put rules into different categories. Rules that would always be presumptively lawful, rules that would require some more scrutiny, and rules that probably would always be unlawful.
Daniel Schudroff (29:07):
And to me, at least, it was a more common sense approach that under the pre-standard that we were working under in the Obama Administration, we were taking a look at a reasonable reader. What would that reasonable reader review and say, "All right, well, this infringe upon my Section 7 rights." And I think the labor Board at times would presume that that reader was somebody who had an advanced degree in labor law. And I think the Trump Administration kind of reined that kind of concept in. So I think that if a Biden Administration were to come in, that we would see a restoration of those, a reversal of Boeing, of course, and back to the predecessor standard, which is that Lutheran Heritage standard, where we would see the reasonable reader again. And that would be one of those things that we would say, "Hey, you remember our handbook that we reviewed back in 2013? Well, it's back. Get out the red line."
Daniel Schudroff (29:58):
Because we're would see things that we were expect would probably be restored. Other things, we've seen a bunch of other cases dealing with workplace conduct. There was a recent case, General Motors, which discussed how those kinds of profane outbursts at work would be addressed. That standard could go away if there was a Biden Administration in play. So anything else that you can think of, Suellen? Any other cases, any other decisions that come to mind?
Suellen Oswald (30:24):
I just want to follow up on that recent General Motors decision that now for the first time says that if you engage in profane, abusive type of activity, even if you are also engaged in protected concerted activity, you could still be disciplined for that. And I think that's really important in today's world where our employers are conducting anti-harassment and anti-retaliation training all the time in order to preserve that workplace where people want to come to work, where their policies are not being violated, where they're not put at risk for all forms of discrimination, retaliation, and harassment lawsuits.
Suellen Oswald (31:05):
So thinking about a reversal of the GM decision, where that kind of behavior would still be blessed, so long as you could prove you were engaging in protected concerted activity, I think would really be disappointing to employers in their quest to maintain workplaces that are free of discrimination and harassment, which is what we all want.
Daniel Schudroff (31:28):
I think that's a great point, and I think that's a great way to close our session for today. And I have to say, Suellen, this was a lot of fun. I know you've been traveling around quite a bit in the last week, so it's good to see you. I wish we could see each other in person, but of course, we're all over this Zoom platform, where we're talking to one another, and we're talking to the audience, obviously. So thank you all again, and I hope to see you all against soon.
Suellen Oswald (31:53):
Speaker 1 (31:57):
Thank you for joining us on We get work™. Please tune into our next program where we will continue to tell you not only what's legal, but what is effective. For more information on today's topic, our presenters, and other Jackson Lewis resources, or to subscribe to our podcast, visit Jacksonlewis.com. And as a reminder, this material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Jackson Lewis and any recipient.
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