Management Update

I'm Not Amazon, Apple, or Starbucks: Why Should I Care About Union Organizing?

By: E. Fredrick Preis, Jr., Rachael Jeanfreau, and Philip Giorlando

Union organizing efforts at companies like Amazon, Apple, and Starbucks have seen increased media attention. Union elections have dramatically increased by 70% as compared to 2021, according to the National Labor Relations Board, the federal agency that oversees unions. This rapid rise in union organizing, and the way that these efforts spread from employee group to employee group, make clear that every industry should become prepared. Employees across the country are reading the same news articles and thinking: “If the local Starbucks can unionize, why can’t we?”

The string of union organizing efforts at smaller retail facilities demonstrates that these union drives are starting because of employees’ perceived unfair treatment or working conditions. For instance, the union organizing efforts at Starbucks appear to have resulted at least in part from supposed unfair work assignments. This employee-based union organizing makes it more important for companies to assess their potential vulnerabilities, develop a strategy for resolving any vulnerabilities, and execute policies and practices that ensure the fair and consistent treatment of all employees.

Vulnerability to Union Organizing

The most important aspect to ensure that your employees do not want a union is consistent, positive employee relations. Companies vulnerable to organizing efforts are those with high turnover due to poor work conditions or compensation issues and higher numbers of complaints from employees regarding treatment by supervisors. Company management should regularly communicate with supervisors and managers who work directly with first-level employees to determine what complaints employees have and how the company can address them. Employers should also periodically conduct compensation reviews to determine whether their compensation and benefits are competitive in the industry and internally consistent and defensible.

Implementing Policies and Practices

Employees often turn to a union for representation when they feel as though the employer provides no avenue to be heard, and no procedure for how to address employee complaints. To ensure that employees are heard, and complaints resolved, employers need to implement written policies and procedures in a company handbook that spells out the expectations of employment, the company’s open door philosophy, and provides practical steps that employees can take to have workplace complaints resolved. Employers should then provide training to its supervisors and managers, as well as the employees, explaining the company’s handbook, how employees can relay complaints to management, and how management will resolve those complaints promptly and thoroughly. After these foundational policies and practices are implemented, the company then needs to periodically review its employee relations to determine that the policies and practices are properly executed by its supervisors and managers and resolve any issues that arise.

Developing a Legal Defense Plan

Just as employers have contingencies in the event of a catastrophic storm, plans need to be made to deal with the advent of union organizing. There are specific issues that need to be explored before a union drive including which employees might be part of any bargaining unit, what will be done to protect its confidential information, and how the supervisors will be trained to communicate and act in a legal fashion. The plan should be developed as much as possible with attorney-client privilege.

As union organizing efforts continue to spread across the country, every employer should pay attention and ask whether employees are being heard and satisfied with their work conditions—because many employees are asking those same questions and may turn to a union if they do not like the answer.

New Louisiana Laws Address Workplace Violence in Healthcare Settings

By: Alexandra Cobb Hains

Effective August 1, 2022, La. R.S. 40:2199.11 through 2199.19 create a number of new requirements for healthcare facilities directed towards addressing, mitigating, and preventing workplace violence. The legislation was named the Lynne Truxillo Act in honor of a registered nurse who died as a result of her efforts to save a colleague who was being physically attacked by a patient. The legislation requires:

1. Facilities to post signage which states that abuse or assault of healthcare staff will not be tolerated and could result in a felony conviction. Each sign must conform with the following specifications:

Be posted in conspicuous location in a publicly accessible area;
Be at least 18 inches tall x 18 inches wide; and
Be written in English with letters not less than one square inch in size.

2. Facilities must develop and maintain a workplace violence prevention plan that includes:

Resources for ongoing education on the issue of workplace violence;
Resources for preventing workplace violence; and
Resources for responding to incidents of workplace violence and debriefing with respect to such incidents and responses.

3. The workplace violence prevention plan must address and encompass all of the following:

Personnel education and policies requiring all healthcare workers who provide direct patient care to patients to receive, at least annually, education and training in a format that provides an opportunity for interactive questions and answers with a person knowledgeable about the workplace violence prevention plan. The education and training shall cover topics including but not limited to:
How to recognize the potential for violence to occur;
When and how to seek assistance to prevent or respond to violence;
How to report violent incidents to law enforcement; and
Resources available to employees for coping with incidents of workplace violence.
A system for responding to, and investigating, violent incidents and situations involving violence.
A system for regularly, and not than annually, assessing and improving upon factors that may contribute to or help in preventing workplace violence. This system shall address, without limitation, all of the following aspects of the workplace:
Staffing, including staffing patterns that may contribute to, or be insufficient to address, the risk of violence.
Sufficiency of security systems including alarms, emergency response systems, and availability of security personnel.
Job design, equipment, and facilities.
Security risks associated with particular units of the workplace, areas of the facility with uncontrolled access, late night or early morning shifts, and areas surrounding the facility such as employee parking areas.
A requirement that the regulated entity maintain and make available to its employees a written safety and security plan.

The legislation also requires healthcare facilities to report all instances of workplace violence and prohibits any adverse employment action being taken against an employee who reports an instance of workplace violence.

Employer Ordered to Pay Employee Five Million Dollars Because

By: Jerry L. Stovall, Jr.

In July 2022, a jury in Dallas, Texas awarded a former flight attendant Five Million Dollars against her former employer and union after they colluded to fire her in violation of Title VII because she shared her pro-life beliefs with her co-workers. Specifically, the plaintiff, Ms. Carter, alleged that:

her religious beliefs require her to share with others her pro-life stance on abortion;
the union complained to her employer about her pro-life posts on Facebook;
the union violated Title VII by trying to get her fired over her religious views; and
the employer, Southwest Airlines, violated Title VII when it did fire her because of her pro-life social media content.

Ms. Carter argued that the defendants treated her less favorably than similarly situated co-workers who did not share their pro-life views and that they failed to accommodate her religious beliefs. The jury agreed and awarded Ms. Carter $700,000 in lost wages, $1,000,000 in compensatory damages, and $3,800,000 in punitive damages.

How can you make sure that you don’t ever have to pay a former employee this kind of money?

Apply your work rules and policies consistently. Had the defendants treated all violations of their social media policies equally, the outcome may have been different.
Title VII does not just protect politically correct beliefs or those that an employer agrees with, it protects all sincerely held religious beliefs, even those that may offend. Title VII requires employers to accommodate those beliefs.
If you can’t effectively document that you did numbers 1 and 2, a jury is probably not going to believe you.

People’s beliefs and views on many significant issues seem to be more polarized now than ever. Employers often must put their personal views on these issues aside and protect employees who advocate views that they don’t necessarily agree with. This is not easy, but it is often required by the law.

EEOC Issues COVID-19 Update!

by: Jerry L. Stovall, Jr.

In July 2022, the EEOC issued another COVID-19 update. (You can find it here.) Although the update is not groundbreaking, the highlights are worth noting:

This is probably the most notable change contained in the update.
Prior EEOC Guidance indicated that mandatory workplace COVID-19 testing always met the ADA “job related and consistent with business necessity” standard. The new Guidance changes that: now, an employer can require a COVID-19 viral test when deciding whether an employee or applicant is safe to be in the workplace only if the employer can show that the viral test is "job-related and consistent with business necessity."
Generally, viral test requirements will meet this standard if they are consistent with current guidance from the CDC, the Food and Drug Administration, or "state and local public health authorities." Other justifications for requiring a viral test include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
As with most issues we discuss, it is going to be important that you document the process of requiring the viral test and the information (CDC, FDA, etc..) that you relied upon in doing so.

Other interesting elements of the new Guidance provide that:

Employers still cannot require antibody tests.
Employers can screen applicants for symptoms of COVID-19, but they can only do so after making a bona fide conditional job offer and they must do so for all entering employees in the same type of job.
Employers can require employees to be vaccinated against COVID-19 as long as the employer considers reasonable accommodations for employees with disabilities, pregnancy, or religious objections.
Employers must be aware of the possibility that their vaccination mandates may have a disparate impact on employees in certain protected groups and conduct a disparate impact analysis.
Employers can share an employee’s COVID-19 test results with employees who need the information in order to do their jobs, such as an administrative employee assigned to maintain records of vaccinations, an employee assigned to check vaccination status before allowing people to enter the building, or an employee who administers a COVID-19 testing requirement.
There is no limit to the value of incentives an employer can offer to employees who get vaccinated, as long as the vaccines are administered by a third party (not an agent of the employer). If the employer or its agent administers the vaccines, the incentives "may not be so substantial as to be coercive."
Employers can require a doctor's note before letting an employee return to work after a bout with COVID-19. In the alternative, employers can and rely on CDC guidance regarding when an employee should be allowed to return to the workplace.
If a recently hired employee tests positive but is needed immediately, the employer can withdraw the offer, if (1) "CDC guidance recommends the person not be in proximity to others," and (2) "the job requires proximity to others." Even if these criteria are met, employers should consider reasonable accommodations, such as delaying the start date until the offeree recovers or letting the offeree work remotely.
An employer cannot postpone the start date of an employee that does not have COVID-19 but who may be "vulnerable" because they are older, pregnant, suffer from a disability….
If an employer is concerned that an employee may be more vulnerable to COVID-19, it must allow the employee stay in the workplace if the employee chooses to do so, unless there is a "direct threat": an imminent risk of serious harm to the employee or to others.
Similarly, employers may not keep older workers out of the workplace out of concern that they are more vulnerable to COVID-19.