As an employment law firm in South Carolina, the employment lawyers at Gignilliat, Savitz & Bettis, LLP understand how the National Labor Relations Board’s decisions impact businesses in South Carolina. It is not uncommon for regulations affecting businesses to change with the changing of the executive branch administration in Washington, D.C. These regulations can affect everything from the National Park Service to employee unions. It is imperative that employers and business owners stay apprised of changing regulations to maintain compliance, maximize profit, and minimize liability. We have covered some changes on the way in previous Journal articles, but more changes could be on the horizon from the National Labor Relations Board.

What is the NLRB and What Does it do?

The National Labor Relations Board (NLRB) is an independent federal agency that “protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.” It has five members and acts as a quasi-judicial body in deciding cases on the basis of records in administrative proceedings. Board members are appointed by the President of the United States, with Senate consent, for five-year terms. There is one new board member each year. Decisions from cases that came before the NLRB can be found on its website.

Possible Changes to the Ambush Election Rule?

The NLRB has sought input from members of the public on whether to change a controversial rule that was adopted in 2014 and that shortened the time in which employers are required to hold union elections – nicknamed the Ambush Election Rule. The NLRB asked the public whether the 2014 Election Rule should be retained without change, should be retained with modifications, or should be rescinded.

The rule shortened the time in which employers are required to hold union elections. Under the previous, longstanding policy, the median time between when the union petition was filed and when the vote was taken was 38 days. Under the Ambush Election Rule, the average time fell to 23 days. Generally, the Ambush Election Rule was and still is opposed by employers and was perceived as an attempt by the NLRB to sway the process toward unionization. It was and is also opposed by the Society for Human Resource Management (SHRM) on the theory that it does not give workers as much time to make decisions about whether to join a union as the preceding policy.

While the NLRB has upheld challenges to the Ambush Election Rule in the past, a change in board members with an appointment from President Trump may result in a different outcome in the event the matter comes up again. Alternatively, the board may see the Ambush Election Rule rescinded completely based on the questions posed for public input.

What Changes are Coming for Jointly Employed Workers?

Earlier this year, this journal explained what joint employment looks like in South Carolina and what the duties of an employer are to joint employees. On December 14, 2017, the NLRB overturned a decision from 2015 that held businesses responsible for labor law violations committed by their respective franchisors and contractors on the basis that the employees of the franchisors/contractors are jointly employed by the franchisee/business owner. The decision from the 2015 Browning-Ferris case found a company to be a joint employer if it had indirect control over the terms and conditions of employment, or reserved the authority to do so. Under the 2015 former joint employment rule, a business could be held responsible for violations of a contractor if the contractor were violating its employees’ rights. Businesses that work with contractors, and in particular with franchisors, generally disfavored this rule because of their limited control over the workplace within the franchisor’s establishment. The 2015 joint-employment rule also allowed franchise employees to negotiate with the franchisee to form a union rather than with the myriad of franchisors, and temporary workers could pursue the employer rather than the temporary agency for better wages or improved working conditions.

Under a decision issued mid-December 2017, the NLRB said a company is considered a joint employer only if it has direct control over the workers. The statement issued by the NLRB said two or more entities will be deemed joint employers only if there is proof that one entity has exercised direct and immediate control over essential employment terms of another entity’s employees. This means a franchisee that never exercises contractually-reserved control over franchisor’s employees or that merely controls employees indirectly will not be liable as a joint-employer under the new NLRB standard. Unfortunately, the NLRB vacated the new decision because one of the members participating in the decision previously had been associated with a law firm handling the matter. The Browning-Ferris rule may still be changed. Stay tuned.

Can Graduate Student Employees Still Form a Union?

In 2016, this journal detailed where graduate student assistants at private colleges and universities fall on the employee spectrum based on NLRB decisions and guidance. In 2016, the NLRB applied the National Labor Relations Act to determine that teaching and research assistants are statutory employees and are entitled to collective bargaining rights. Since that ruling, institutions of higher education across the country have pushed back against student employees’ attempts to organize. Students argue that while they are facing increased tuition and fees, they are also facing reduced wages, benefits, and weakened job protections. The unionization attempts since the NLRB’s 2016 ruling have yet to produce a contract, so it remains to be seen what benefits and expenses the unionization of graduate student assistants could elicit. At this time, however, a case involving a graduate student teacher does not appear to be imminently before the NLRB.

Are There Changes to What Goes in an Employee Handbook?

This journal has explained and examined what content should and could be in employee handbooks, as well as what could and should be left out of them. The NLRB has issued additional guidance on handbooks and policies. On December 14, 2017, the NLRB overturned a case from 2004 which examined whether workplace rules, policies and handbook provisions that appeared neutral on their face unlawfully interfered with the exercise of rights protected by the NLRB. Under the tougher standard, a policy that 1) did not explicitly prohibit protected activities; 2) was not adopted in response to protected activities; and 3) was not applied to restrict protected activities still violated the National Labor Relations Act if the rules would be “reasonably construed” by an employee to prohibit the protected activities. In an attempt to clarify the restrictions, the NLRB said two things were to be evaluated: 1) the nature and the extent of the potential impact on NLRA rights; and 2) the legitimate justifications associated with the rule. This new rule will be more fully explored in a future journal entry.

What Changes can Employers Expect?

This journal article has covered a wide variety of situations: rules on timelines to unionize, joint-employment, and employment rights of graduate student teachers. As this article indicates, rulings issued by the NLRB can be heavily influenced by partisan politics depending on the makeup of the board. Employers might expect to see a change in NLRB decisions, shifting from a board more friendly to organized labor to a board protecting the interests of employers, companies, and individuals under the current administration.

How can Employers Stay Apprised of Changing Rules?

Knowing about changes to policies and regulations affecting an industry or business helps employers continue to follow the law, and also ensures employers do not engage in unnecessary activities to comply with outdated policies or regulations. Attorneys at Gignilliat, Savitz, & Bettis, LLP are dedicated labor management relations lawyer who stay apprised of regulatory, legislative, policy, and other changes that affect businesses in South Carolina. Contact an experienced labor attorney at Gignilliat, Savitz, & Bettis, LLP for a review of your industry and business and the employment and labor laws, regulations, and policies affecting it.