The Labor Law Insider

Labor Law Insider host Tom Godar challenges his guests, Mary-Ann Czak and Terry Potter, with real-life scenarios gathered from client interactions over the past several months. These scenarios help highlight the fundamental shifts that have taken place under the Biden administration’s National Labor Relations Board, forcing employers to change their disciplinary analysis in so many different circumstances. In the first installment of this two-part podcast, Mary-Ann and Terry respond to questions related to confidentiality, recording at the workplace, nuances when making decisions in the healthcare setting, and much more. Join us for this content-rich and practical conversation and stay tuned for part two where this exchange continues with practical tips on how to proceed.

In part two of the discussion regarding the successful unionization of the Dartmouth University men’s basketball team, our labor law insiders Tyler Paetkau and Jason Montgomery, along with host Tom Godar, offer analysis and predictions for the next round of play for more athlete power.   Who will be the winner in this battle over the spoils of the trillion-dollar industry that is college athletics? It is a full-court press to explore union power, name, image, and likeness (NIL) revenue, state-level regulation of public universities and its impact on the NCAA and the various athletic conferences. Join us for this animated chalk talk.

Legendary basketball player Magic Johnson said, “The only thing that matters is the score.”Well, the score is 13 to 2, considering the votes for a union representing the Dartmouth College men’s basketball team. For college basketball hounds, it’s tournament time, but for the NCAA, it is a strange turn of events. Dartmouth, an Ivy League bench warmer in men’s basketball, has not played an NCAA Tournament game since 1959; however, it is now a leader in organized labor, choosing to become represented by the Service Employees International Union, since the National Labor Relations Board (NLRB) found that the institution exercises control and provides compensation—in the form of shoes—but not athletic scholarships. In its decision, the NLRB cited the players’ estimate that team members receive equipment valued at over $44,000 per year.Husch Blackwell partners Tyler Paetkau and Jason Montgomery join Labor Law Insider host Tom Godar to explore this development, as organized labor continues to apply a full-court press to institutions of higher education.

This episode of the Labor Law Insider concludes our discussion on the changes wrought by the National Labor Relations Board (NLRB) in 2023 and their implications for employers in 2024 and beyond. Adam Doerr and Rufino Gaytán join host Tom Godar to offer their thoughts on NLRB decisions that prohibit the inclusion of confidentiality provisions in release agreements.  They also provide insight into how employers must contend with a new risk calculus to implement their policies and actions regarding employee relations. The discussion also explores the significant increase in strikes and whether regular use of that provocative tactic is likely to continue. The Insiders also analyze how successful union organizing has expanded in 2023 and whether these trends reflect the greater popularity of unions in the broader public context. The episode concludes with a focus on proactive leadership by employers to limit their employees’ desire to unionize at all and to communicate effectively with unions that already represent their employees. Join the Labor Law Insiders for this stimulating podcast. 

Labor Law Insider veterans Adam Doerr and Rufino Gaytán join host Tom Godar to discuss the impact of the National Labor Relations Board’s 2023 decisions. How does the Cemex decision, encouraging union representation without elections, fit in with the many other changes wrought by the NLRB in the past year? The discussion focuses on the much-narrowed pathway for employers to negotiate in 2024 regarding policies, discipline, and responding to union organizing. Join these experienced labor counsel as they offer thoughtful perspective of organized labor’s new power, and how they are flexing their muscle with both strikes and union organizing with new and union-friendly rules. This is Part One of a two-part series. Part Two will include further insights and opportunities to mitigate the impact of some of these decisions. Join us on this episode of the Labor Law Insider.

Husch Blackwell partners Tom O’Day and Tyler Paetkau join Labor Law Insider host Tom Godar in Part II of this discussion of the impact of new Cemex decision by the NLRB. Suddenly, minor violations of the National Labor Relations Act—or even a single violation—could result in an order forcing recognition of a union without the union ever achieving majority status in a secret ballot election.The Insiders also discuss the serious impact of a union election cycle reduced to only a couple of weeks, as well as the unprecedented employer obligation to file an election request with the NLRB upon presentation of a petition or cards claiming majority support of a union. Responding to this new threat must include a review and audit of your handbook, policies, and offer letters. The Insiders recommend offering valuable training to supervisors and emphasizing and practicing the pro-employee values of your company. It is even suggested that you have documents ready for when a union files in order to be up and running for the shortened election cycle even if you are successful in getting to a secret ballot vote. The Labor Law Insider podcast shares the secret that forewarned is forearmed. 

In Part One of this discussion, Husch Blackwell partners Tom O’Day and Tyler Paetkau join Labor Law Insider Host Tom Godar to analyze the NLRB’s Cemex decision, which announced a radical new framework for determining when employers are required to bargain with unions without a representation election.Nearly any unfair labor practice—and certainly a series of even minor ULPs committed during an election period—will likely force an employer to recognize and bargain with a union, even if a majority of the employees vote against union representation. Employers will be forced to engage in a much more circumspect campaign opposing union organization, given the high risk of a bargaining order being imposed upon the employer.Part Two of the discussion will focus on this significant change, which, along with other pro-union NLRB decisions over the last 36 months, fundamentally alters employers’ approach and likelihood of success in winning union elections. In Part Two, Tom and Tyler offer some suggestions on how to win an election before one is ever filed. 

In this episode of the Labor Law Insider, attorneys Adam Doerr, Trecia Moore, and host Tom Godar continue their discussion of decertification petitions, focusing on some of the practical implications related to decertification efforts, including:Employees who are frustrated with their union representative may be stymied by the complex decertification process, and the specific and detailed requirements of the process.Employers may consider withdrawal of union recognition based on loss of majority support, bolstered by a decertification petition, but face risks in doing so. Employers continue to have free speech rights in a decertification campaign but may opt for a softer approach for a variety of reasons.We conclude the episode by hazarding a few predictions, including the continued strength of recent union-organizing efforts with the likely result that more employees will opt for union representation; however, we also see an opportunity for employees who are disenchanted with their union experience to vote on decertifying their union, as could be the case for Starbucks employees. 

In this episode of the Labor Law Insider, our host, Tom Godar, is joined by Husch Blackwell attorneys Adam Doerr and Trecia Moore to discuss union decertification.In 2022 there were approximately 1,700 petitions for election filed before the NLRB, and about 300 of these were filed by employees to decertify their bargaining unit representative.Over 300 Starbucks elections have resulted in union representation and at least 16 petitions for decertification have been filed.Employees continue to seek the end of union representation for a variety of reasons through the decertification process, including those experiencing changes in their bargaining unit or a change in those managing bargaining unit employees. Our Labor Law Insiders also discuss why some employers are quite content to remain in a bargaining relationship with the union. Join us now for part one of this podcast through the land of decertification and look forward to part two of this podcast where we discuss practical steps and cautions to consider in the decertification process.

Labor Law Insider host Tom Godar continues to explore the nexus of labor issues and higher education with veteran labor lawyer Tyler Paetkau of Husch Blackwell’s Labor & Employment group and Jason Montgomery a member of Husch Blackwell’s Higher Education group and a former NCAA investigator. Together they review NLRB General Counsel Abruzzo’s guidance regarding higher education and the Northwestern University decision, which paves the way for student-athletes to argue that they are employees under the National Labor Relations Act and its state counterparts with rights of representation by unions.Our Insiders review the implications of student-athletes receiving compensation for use of their name, image and likeness (NIL) and the new decision by the NLRB’s Los Angeles region to charge not only the University of Southern California but the Pac-12 Conference and the NCAA as joint employers of the student-athletes-putative employees. The podcast touches upon unions targeting college campuses, the special protection offered student-athletes under Title IX, and the potential impact of mandated equity among male and female athletes as among the new challenges facing universities and colleges. Although the large private institutions are attracting most interest, there is also recognition in the discussion that states provide organizing opportunities for students at public institutions, and even smaller institutions may ultimately be swept up in areas of traditional labor law protection if the trends already initiated by the National Labor Relations Board continue. Join us for this very thought-provoking discussion of emerging issues on college campuses and how student-athletes figure into what might become the most interesting challenge for universities, athletic conferences and even the NCAA in the coming decades. 

Host Tom Godar is joined by two special guests, Tyler Paetkau and Jason Montgomery, for a special Higher Education edition of the Labor Law Insider. In this first part of a two-part podcast, the panel takes on two recent and hugely important U.S. Supreme Court decisions, Biden v. Nebraska Loan and Students for Fair Admissions v. Harvard College. The first case deals with student loan forgiveness and the second takes on race-based considerations for college admissions.Jason offers an analysis of the Court’s majority decisions in Students for Fair Admissions and shares how universities had anticipated this decision. In response, many institutions are changing—or at least, assessing—their current application standards. Tyler suggests that these issues may impact closely allied areas of concern, such as affirmative action and DEI policies, that have race-based components.There is also a discussion of the Biden administration’s executive overreach in declaring student loans forgiven, which the Court found to be an encroachment upon congressional power. The discussion also considers alternative approaches the administration may attempt to pursue its goal of student loan forgiveness. Also in Part One of this episode, the panel explores the notion of student-athletes as employees. Tyler discusses the recent decision by the National Labor Relations Board to issue a formal complaint against the NCAA, the Pac-12 Conference, and the University of Southern California in connection with alleged unfair labor practices.These themes are further developed in Part Two of the podcast, which looks at the increased activism of unions on campus with regards to both strikes as well as organizing. Universities are advised to identify and assess opportunities to understand where union activities may arise on their campuses.

In this episode, the second of two, host Tom Godar and guest Rufino Gaytán continue to discuss the impact of the National Labor Relations Board’s Lion Elastomers decision, allowing problematic behavior to be wrapped in the cloak of protected behavior. Rufino offers insight on the application of this decision to non-unionized employers and steps to be taken to decrease the chances that a claim for protected behavior would be successful before the NLRB. We also explore the difficult balance between the risk of a claim and the need for an employer to protect its culture and values by disciplining employees who may be acting outside of the employer’s standards.The discussion highlights that having a consistent application of employer policies, providing discipline in the context of uncivil behavior even when not remotely connected to protected concerted activity may help establish a guideline for analysis of an alleged unfair labor practice. While the NLRB will not make its decision based on the subjective intent of the employer, the lack of consistency in application of a policy will surely facto into any conclusion that discipline in a potentially protected area is unlawful. When witnessing such behavior, Rufino makes it clear that it is very fact specific and that one activity of a profane objection on behalf of many in the workforce may be protected, but when it turns into threatening behavior, it may lose its protection altogether. Nevertheless, the employer may work to defuse such heated exchanges through suspension and later review, seeking the core basis for the outburst rather than discharging an employee in the heat of the moment.Most importantly, Rufino suggests that the employer must carefully adhere to its core values that would not allow certain behavior to go unchecked when balancing this against the risk that an NLRB review might find that same behavior to be protected and concerted activity. At that point, it may be wise to consult counsel on the latest reading of this changing area of law and how it affects employers’ desire to keep the workplace civil and safe. 

Host Tom Godar and his guest Rufino Gaytán tackle the newly expanded protections offered employees under the National Labor Relations Board’s Lion Elastomers decision, published May 1, 2023. As part of the ping-pong effect of a Biden-appointed Board following a Trump-appointed Board following an Obama-appointed Board, employee protections for violations of employer’s policies that were previously available have been restored. This allows employee behavior in the context of concerted activities, such as shouting racial epithets, or engaging in coarse and even potentially threatening conduct, to be excused as part of the real world of labor relations as it is seen on picket lines or in other situations of conflict. This overruled the 2020 General Motors decision which held that the Board must look to employer intent and good faith in applying employer policies or standards regarding conduct, even if it was also related to National Labor Relations Act. That decision had attacked the standards set forth in Cooper Tire and other decisions; however, the Lion Elastomers decision makes it much more difficult for employers to balance the responsibility to address behavior in the workplace with the rights of employees to engage in concerted activities challenging the employer, its employees, or policies. Mr. Gaytán acknowledges that while General Counsel Abruzzo suggests that there is no inherent conflict with this position, and enforcement of employee rights to be free from threatening behavior or a hostile workplace, the analytical framework to make decisions which balance these rights is hardly easy to apply.In episode two of this podcast, Tom and Rufino continue their discussion and look at the potential impact upon those employers who do not have union-represented employees. They also discuss some of the practical implications of balancing the newly articulated rights of employees and the overall responsibility of employers to protect all of the employees in the workplace from improper conduct. Join us soon for part two of the Labor Law Insider.

In the second installment of this two-part Labor Law Insider podcast, attorneys Terry Potter and Tom O’Day join host Tom Godar to discuss the impact of the National Labor Relations Board decision of McLaren Macomb, as well as the new General Counsel Memorandum (GC 23-05) interpreting that decision. As a result, employers need to review their employment-related non-disclosure and non-disparagement provisions in severance agreements. Moreover, O’Day and Potter suggest that the impact could be much broader. For instance, General Counsel Abruzzo takes on non-compete agreements as well as non-solicitation agreements. Further, as presented by the Labor Law Insiders, this likely affects how employers craft policies in handbooks. The inadvertent inclusion of such provisions which could be found in violation of the National Labor Relations Act may also be used by unions to bring claims of unfair labor practices and leverage those claims into bargaining or organizing activities.Potter suggests that while there will be challenges to the breadth of this interpretation of the Act, very often these challenges are upheld because of deference to the expertise of the Board. An alternative strategy, suggested by O’Day, might be for employers to let their representatives in Washington know of the practical impact that such a broad interpretation of the Act might have upon business and its ability to plan for the future. Join us for this provocative discussion regarding the impact of the latest Board decision and General Counsel proclamations.

The Labor Law Insider invites two experienced counsel, attorneys Terry Potter and Tom O’Day, to explore the implications of the National Labor Relations Board’s decision in McLaren Macomb, issued in late February, as well as the even broader general counsel memorandum sharply curtailing employer rights to insist upon non-disclosure and non-disparagement in severance agreements. In part one of this podcast, host Tom Godar begins to explore the contours of these employee rights or employer restrictions. This change would affect all employees who would otherwise be eligible to participate in a bargaining unit under the National Labor Relations Act and bleed over as well to supervisors whose behaviors might be seen as having supported others in their protected and concerted activities. The new twist makes even presenting a non-disclosure or non-disparagement agreement to an employee—which is overbroad according to the new interpretation of the board and its GC—itself an unfair labor practice. According to General Counsel Abruzzo, the unfair labor practice would extend not only to those agreements which parties would now craft but would go back in time to agreements that include what are now considered overbroad non-disparagement or non-disclosure agreements, and that such agreements would be a continuing violation, with essentially no time limitation on when one could bring a charge based on overbroad language. Terry Potter suggests that while the instructions from the general counsel will find their way into enforcement actions brought by the board, the Administrative Law Judges before whom such cases are heard may curb the reach of the GC memorandum.It remains to be seen as to whether savings clauses that would carve out NLRB protected rights, or severability provisions, would be effective in defending against a ULP challenging the reach of the agreement. What is also missing from the GC memo is whether an agreement negotiated with counsel on both sides would have less scrutiny than one which was merely crammed down to employees who were in the process, for instance, of a reduction in force. Part two of the podcast continues to explore whether protected activity would include freedom from non-compete agreements, non-poaching agreements as suggested by the GC Memorandum.

Host Tom Godar welcomes Husch Blackwell partner Anne Mayette to part two of this Labor Law Insider podcast. Anne is deeply engaged in counseling employers regarding employment and labor activity and defends employers in litigation as well. From these experiences she has deep and important insights into the workplace. Anne shares a number of these insights regarding employment engagement, particularly as they relate to the manufacturing industry in this episode. This discussion is an outgrowth of the extensive manufacturing white paper published by Husch Blackwell in January 2023 which explores challenges and opportunities for manufacturers well beyond just the area of labor and employment.In part two of the podcast—part one was posted on March 2, 2023—Anne shares some anecdotes from employees which go a long way toward helping understand employee engagement. For instance, it becomes clear that employees value ongoing training and a career path that is clearly explained and available to them, as well as flexibility in terms of their work and work life. Employees seek an employer that is truly concerned with the safety of its employees and that engages well trained and experienced managers to assist employees in their day-to-day activities, as well as managing their long term goals. Indeed, employees are also very interested in an open dialogue with managers and the commitment of organizations to diversity, equity, and inclusion. Not surprisingly, surveys and scholarship affirm that while wages are important, two-thirds of the employees who are paid at market rate still feel underpaid and undervalued. Instead, these employees often conclude that they neither are trusted to have meaningful workplace insights nor feel connected to the larger mission of the organization. This disconnect at the workplace and lack of trust is an area of vulnerability for employers who seek to maintain a direct relationship with their employees rather than working through a third-party union. Anne discusses the use of engagement surveys, an analysis of human resources and safety policies, the introduction of DE&I training and recruitment process, and use of union vulnerability tools to assess where employers are as it relates to employee engagement.Join Anne and Tom in this fascinating conversation which goes well beyond union avoidance to creating a workplace where employee engagement leads to successful and profitable practices by employers. 

The Labor Law Insider (LLI) podcast welcomes Husch Blackwell partner Anne Mayette on her inaugural trip to the LLI microphone. Anne, who practices out of the firm’s Chicago office, is a seasoned labor and employment lawyer, and joins host Tom Godar to discuss union activity in the manufacturing and related sectors. This is an expansion on the discussion of employment and labor issues in the extensive Manufacturing White Paper published by Husch Blackwell in January 2023. There has been a tremendous increase in organizing activity as well as strikes and other job actions in the manufacturing and related industries, including 32 strikes in 41 locations and 16 labor protests in 17 locations in calendar year 2022, according to Cornell’s tracker. Anne discusses these developments and puts them into a broader context of employee engagement, or lack of engagement, which spurs union organizing activity. Using information compiled in the Manufacturing Industry Analysis, Anne describes a number of areas in which employers could provide more opportunities which would likely increase employee engagement and decrease the chances of successful union activities. The survey suggest that employees look for greater diversity in the workplace, more voice in the workplace, and more meaningful individual and employee group communications from their employer. While none of these observations are shocking, Anne describes practical steps employers can take that would not only decrease the need for employees to seek union intervention, but also increase the success for the organizations as they compete for talent in manufacturing and related industries. Part 2 of the of podcast will continue with more specific examples of employee input on issues, as well as steps to be taken by employers to introduce greater engagement opportunities. Join us for the Labor Law Insider podcast. 

In part two of our Labor Law Insider podcast regarding New Year’s resolutions for maintaining a union-free workplace, Tom Godar once again welcomes Rufino Gaytán. In part one, Rufino supported the resolutions that employers offer training to first- and second-line supervisors and provide financial, management, and market information to hourly employees. Adopting these resolutions are important steps for employees to be treated well and given an opportunity to experience the workplace as a respected member of a team, rather than merely a necessary functionary to complete a service or product. Unions do not compete well with employers who work to engage employees in a meaningful workplace experience.In part two of this podcast, Rufino and Tom explore the importance of actively listening to employees and giving them an opportunity to constructively share their insights regarding the workplace. The other side of that coin is the employer responding to the ideas, criticisms, and suggestions that hourly workers and others might offer. This allows employers to engage and to respond to employees without the need for a third-party union to speak on behalf of the employees. Finally, Tom and Rufino offered the time-tested resolution of reviewing employee policies and standards, both to ensure that they accurately tell the story of what the employer and the employees can expect in the workplace, but also for compliance with ever-changing enforcement interpretations and regulations offered by the National Labor Relations Board. Handbooks that are clearly written and up to date can reinforce shared expectations and opportunities that reward employee effort and leave little incentive for employees to seek unions. Policies that are compliant with changing standards leave little room for unions to exploit small deviations that can be a springboard of claiming unfair labor practices and building a unionizing campaign from those noncompliant polices. Getting the basics right means listening to and respecting employees, having well trained supervisors, offering information that shows respect for the participation of employees in their workplace, and crafting policies that are not only compliant but display the employer’s eagerness to engage with employees. These resolutions will pay dividends in maintaining a direct relationship with the employees. 

Tom Godar, host of the Labor Law Insider, welcomes Labor Law Insider alumnus Rufino Gaytán to kick off 2023. In a time when union activism is on the rise and employers are increasingly being targeted for union organization campaigns, the Labor Law Insider proposes resolutions which every employer can adopt to continue a positive pro-employee relationship and thereby making union organization irrelevant. Rufino is an experienced labor lawyer, often engaged in counseling unionized employers, and importantly, assisting those in maintaining union-free status in order to have a direct relationship with the employees. In part one of this podcast Tom and Rufino posit the resolution of offering excellent training to first- and second-line supervisory staff. This training is not only to acquaint them with legal pitfalls related to the National Labor Relations Act, but more importantly, to encourage the positive engagement, respectful treatment, and the opportunity to build relational capital with the employees for whom they have supervisory authority. Rufino suggests that unions often organize against the backdrop of a supervisor who has not had the training and seasoning to interact positively with his or her employees, creating dissatisfaction and opportunities to establish a reason for the union to be relevant and invited into the workplace.The second resolution up for discussion was the pledge to provide or openly offer financial, management, and market information affecting the employer to the hourly employees. When employees are invited into the discussion, they better understand their role in the organization and, importantly, the organization’s success and marketplace challenges. Armed with that knowledge in a respectful atmosphere through direct communications with the employer, employees are much more likely to react to negative news with a certain level of understanding, rather than inviting a third party to represent their interests. Tom suggested this might be a simple resolution: “Treat your employees like adults.” They can handle the bad news and the good news and just want to be given their due as important participants in the employment experience.In part two of this Labor Law Insider podcast, employers are challenged to offer the resolution of listening carefully to their employees and responding with respect, and reviewing policies and handbooks not only for compliance, but for hidden pitfalls.Enjoy this podcast and please be sure to listen to Labor Law Insider part two which will come out before the end of January.

Host Tom Godar continues his discussion with partners Tyler Hibler and Tracy Wolf of Husch Blackwell as they discuss anticipated changes to joint employer standards by the National Labor Relations Board: Department of Labor Proposes New Rule to Distinguish Independent Contractors from Employees | Labor and Employment Law Insights. The discussion also takes us into the alphabet soup of the NLRB and DOL’s implementation and enforcement of these employee and union friendly rules. Further, the podcast addresses the possibility of joint investigations between government entities and divisions, which may significantly raise the stakes for employers attempting to interpret and comply with various joint employment standards. Fortunately, the podcast settles on some practical advice. It was recommended that organizations make it a priority to understand these new rules and guidelines when making business decisions involving potential joint employment scenarios. A company must be capable of responding to these shifting standards when assessing the risks associated with using workers other than those that they consider W-2 employees. Additionally, policies should be adopted that clearly identify the roles of various workers and take into account that the mere opportunity to provide discipline or control workplace conditions may impact the employee/non-employee analysis. Third, employers must invest in top-down training and orientation—including front line and second line supervisors and managers—to ensure such policies are followed. Given the complexity of the interaction between laws related to the National Labor Relations Act, wage and hour laws, tax laws, and various state laws, consultation with counsel as these new rules and guidelines emerge is essential. In this time of intense competition for workers, careful analysis and counsel has never been more important when it comes to joint employer considerations.