Union-Organizing and Popularity Trending Upward

The general consensus is that US citizens view labor unions more favorably today than they have in quite some time. Although only 6.1% of the private sector was unionized in 2021, the National Labor Relations Board (NLRB or "the Board") reported that from October 1, 2021 to March 31, 2022 57% more union representation petitions were filed than were filed during the same period of the year before. There is almost daily news about organizing activity at Apple, Starbucks and Amazon. A recent Gallup poll showed that 68% of US citizens viewed labor unions favorably, which is a sharp increase from 48% in 2009.

Bracing for New NLRB and Congressional Pressures

The chair and general counsel of the NLRB general counsel are strong union supporters. The NLRB is currently arguing in a case that employers should be prohibited from scheduling on-site meetings with employees during a union election. These are called “captive audience meetings” and they are vital in any campaign because they allow an employer to give employees the other side of the story when it comes to union representation. The employees will not receive that information from any other source.

The NLRB general counsel Jennifer Abruzzo also recently filed a brief in an ongoing case involving the largest US private-sector labor union (the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or "the Teamsters"), wherein she urged the NLRB to reinstate a doctrine established in the 1949 case of Joy Silk Mills Inc. Under that doctrine, which was overturned in 1969, the Board allowed a union to be recognized without an election if the majority of workers signed authorization cards.

Should this become the rule, employees who sign authorization cards following pressure from others and/or only hearing the sales talk and nonbinding promises from union pushers may find themselves represented by a union with no easy way out. They would not have received any information on the facts, laws and potential risks associated with union representation.

If the Biden administration has its way, the Protecting the Right to Organize Act will further hamper an employer’s ability to combat union-organizing by:

• banning group meetings;
• allowing union access to company property;
• shortening the timeline for elections; and
• limiting the use of outside counsel or consultants.

It’s this pressure from all sides that makes it even more pressing for employers to stay on top of workplace issues and keep their finger on the pulse of employee morale.

Stay On the Alert

Remember, to force an election, a union needs to sign up only 30% of the employees in the bargaining unit it seeks to represent. Unions have had success carving out smaller units within larger facilities, arguing the smaller groups have a unique community of interest separate and apart from other employees in the facility. The saying that you are only as strong as your weakest link definitely applies here.

As current union successes become more publicized, employees may be more willing to listen to organizers’ sales pitches, and online and social media activities make listening easier and more secretive. It is imperative that employers monitor the workforce for any signs of discontent or union interest.

Policy Implementation and Supervisor Training

Employers should have no-solicitation and bulletin board policies in place, as well as a union-free statement included in a new-hire packet or handbook. An employer’s main defense against union-organizing is always its front-line supervision. Employers must understand:

• the importance of continuous and positive employee relations;
• the danger signs of potential union-organizing; and
• what can and cannot be said year-round about union representation.

Employers should have their ducks in a row before they learn they are being targeted by a union. A contented workforce usually isn’t interested in what a union has to sell, so employers need to make sure they are keenly aware of any issues in the workplace and that they deal with those issues as fairly and even-handedly as possible.

Outlining OSHA’s National Standard on Outdoor and Indoor Heat Hazards

The safety world has been abuzz about the creation of a specific standard to protect workers from the hazards associated with extreme heat. On October 27, 2021, the Occupational Safety and Health Administration (OSHA) published an Advance Notice of Proposed Rulemaking (ANPRM) entitled Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.

This ANPRM kicks off the process of rulemaking to establish a specific standard on protecting employees from heat exposure. Most believe the impending standard will closely follow the Regional Emphasis Program of Region VI (Arkansas, Louisiana, New Mexico, Oklahoma and Texas) that has been in place for more than 20 years.

OSHA held a public stakeholders' meeting on May 3, 2022 and gave stakeholders until August 1 to provide comments. As such, it is likely that there will not be a published standard before the end of the year. In fact, Assistant Secretary of Labor for OSHA Doug Parker recently testified it “could be challenging” to have a finalized standard by spring 2024. OSHA claims the new standard addresses concerns with the ongoing effects of climate change and the disproportionate number of low-wage workers and workers of color who are exposed to high levels of heat, thereby intensifying socioeconomic and racial inequalities.

In the interim and to protect workers until the final standard goes into effect, OSHA launched its first National Emphasis Program (NEP) on heat. The NEP, which went into effect April 8, 2022, targets the construction industry, among others. On days when the temperature exceeds 80°F, OSHA inspectors are instructed to prioritize heat-related inspections.

Compliance officers are conducting programmed inspections that focus on heat and are told to expand other inspections to include heat hazards where applicable. Inspectors have been told to be “vigilant” in conducting their inspections and to:

• review OSHA 300 logs and 301 reports for entries indicating heat-related illness;
• review records of hospital visits for evidence of heat-related issues;
• interview workers for symptoms of heat-related illness;
• determine whether the employer has a heat illness and injury program, looking at key elements such as:
1. is there a written program?
2. how does the employer monitor ambient temperatures and levels of work exertion?
3. do the workers have access to cool water?
4. does the employer require hydration breaks and rest breaks?
5. is there access to shaded areas?
6. did the employer provide time for acclimatization of new and returning workers?
7. is there a buddy system in place on hot days?
8. were administrative controls (eg, earlier start times or job rotation) used to limit heat exposure?
9. did the employer provide training on heat illness signs, how to report signs and symptoms, prevention, first aid, how to contact emergency personnel, and the importance of hydration?

If they have not done so already, employers should prioritize efforts to ensure that they are ready for OSHA’s heat-related inspections by implementing the recommended safety measures to address hazards associated with heat.

Although there is no specific standard at this time, OSHA will continue to issue citations under the General Duty Clause, requiring employers to furnish a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm”. Although the exact language of the standard or the date it will come into effect are not yet known, the provisions of the NEP are a reasonable indication of what will be required going forward.

Medical Marijuana in the Workplace

Marijuana is a multibillion-dollar industry in the USA, and current market forecasts indicate that marijuana sales will exceed $100 billion in 2022. As this market grows, so do the state tax revenues from the sale of marijuana. In 2020, California collected more than $1 billion in marijuana-related taxes. Colorado uses their marijuana taxes to cover budget shortfalls and fund state investment in areas such as education and mental health. It is likely for this reason that Mississippi and Rhode Island joined the growing list of 37 states, the District of Columbia and three territories to legalize medical marijuana.

The simple truth is that state-legalized medical marijuana is here to stay and the question every employer must ask is whether they should accommodate an employee’s lawful use of medical marijuana.

Not all marijuana laws are created equal. Each state’s law differs with regard to:

• which type of use is lawful (ie, recreational or medicinal);
• the form of marijuana that is lawful (eg, raw, tinctures, inhalants); and
• how the lawful use of marijuana affects the employment relationship.

Federal and state law both prohibit discrimination on the basis of a disability. As individuals using medical marijuana potentially do so because of a disability, an adverse employment decision (eg, refusal to hire, suspension, termination, demotion) could give rise to liability. That potential exposure, however, is likely limited to those states that expressly prohibit marijuana discrimination and only in very limited circumstances.

The Americans with Disabilities Act (ADA) prohibits discrimination against a qualified individual with a disability. The ADA, however, excludes from its protection individuals who use illegal drugs: “A qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs.”

The Controlled Substance Act (CSA) categorizes and schedules substances according to their potential for abuse and accepted value for medical use, thus making unauthorized possession of such scheduled substances unlawful. Section 812(c) of the CSA criminalizes the knowing and intentional use, possession, growth and distribution of marijuana. Accordingly, the ADA does not protect against discrimination on the basis of medical marijuana use, even where that use is state-authorized.

Certain states, however, go beyond the protections afforded under the ADA. Fourteen states and the District of Columbia prohibit employment discrimination based on the lawful use of medical marijuana and two states (Nevada and New Jersey) prohibit discrimination on the lawful use of recreational marijuana. Even when a state’s marijuana law does not have an antidiscrimination provision, a right of action under the state’s existing antidiscrimination law may still exist for individuals with disabilities who are using medical marijuana to treat the symptoms related to those disabilities.

Employers must understand the law of each state in which they operate to understand whether employees may have a right to use medical marijuana. Critical to this inquiry is whether the company’s employees fall into a state exception or whether the employees are exempt because their duties are governed by federal law.

The "safety-sensitive position" exception tends to be the most important. The National Safety Council (NSC), a respected national body of safety professionals, has determined that no level of marijuana use is acceptable for those who work in safety-sensitive positions. NSC studies indicate that side effects of marijuana include impaired body movement, altered senses, difficulty with thinking and problem-solving, and state that “these effects can lead to deadly consequences for those working in safety-sensitive positions and those around them”.

Federal law also plays a significant role in the determination employers must make on how to deal with medical marijuana laws in the workplace. Although federal law likely does not preempt state marijuana law entirely, certain federal drug-testing laws likely preempt state medical marijuana law.

The US Congress recognized the need for a drug- and alcohol-free transportation industry and in 1991 passed the Omnibus Transportation Employee Testing Act (the Omnibus Act), which required Department of Transportation agencies to implement alcohol- and drug-testing programs.

Pursuant to the Omnibus Act, the Federal Motor Carrier Safety Administration, the Federal Aviation Administration, the Federal Railroad Administration and the Coast Guard implemented drug-testing regulations that prohibit the use of marijuana by those individuals engaged in a safety-sensitive position (eg, commercial drivers, maritime workers or pilots). These federal regulations directly regulate drug use by those types of employees; therefore, there is a direct conflict between the state and federal law, such that the federal drug-testing regulation preempts the state marijuana law.

Whether an employer must accommodate an employee’s medical marijuana usage is contingent on the employee’s position and the state in which they are in employment. Employers must constantly monitor these ever-changing and evolving laws and incorporate drug-testing policies that ensure compliance with both state and federal law.

SECURE Act 2.0

On March 29, 2022, the House of Representatives passed the Securing a Strong Retirement Act of 2022 (SECURE Act 2.0) on an overwhelmingly bipartisan basis of 414 votes to five votes. SECURE Act 2.0 builds upon previous legislation (ie, the SECURE Act of 2019) in seeking to enhance retirement plan enrollment, implement administrative efficiencies and build up the retirement plan assets of the American workforce. The Senate recently introduced two versions of the bill – the Rise and Shine Act and the Enhancing American Retirement Now (EARN) Act – with comparable provisions. 

The following summarizes the key features of the legislation. 

• Newly created retirement plans are required to automatically enroll participants at a deferral rate of 3%, with automatic escalation up to certain levels (10% cap for safe harbor plans, 15% for non-safe harbor plans). (This provision is only in the House version of the bill.) 
• Required minimum distributions are increased from age 72 to age 73 in 2023, age 74 in 2030 and age 75 in 2033, with decreased excise taxes for failure to distribute. (The Senate bills contain different age increases.) 
• Increased catch-up contributions up to $10,000 for eligible participants who are between the ages of 62 and 65, commencing in 2023. (The Senate bill commences the increase at age 60.) 
• Beginning in 2023, all catch-up contributions can be made only on an after-tax Roth basis. 
• Participants are given the option of receiving matching contributions on a Roth basis (currently, matching contributions must be made on a pretax basis). 
• Employers can match qualified student loan repayments, commencing in 2023.
• Plan sponsors can offer de minimis incentives (such as gift cards) to encourage retirement plan participation. 
• Part-time worker eligibility commences at the age of 21 and upon completion of at least 500 hours of service in two consecutive years (the SECURE Act of 2019 required three consecutive years of service). The "hours worked" requirement begins in 2022. The eligibility expansion also applies to 403(b) plans, which is a new feature that was not part of the first SECURE Act. 
• Plans no longer have to recoup overpayments from participants or beneficiaries if the overpayment was made more than three years prior.
• IRS self-correction procedures are modified to expand the safe harbor for elective deferral and automatic enrollment failures. Plans now have 9.5 months after the end of the applicable plan year to correct such errors. 
• Effective for distributions commencing after December 31, 2022, the forced lump-sum payout limit is raised to $7,000 (currently $5,000). 
• Plans can rely on participant self-certification of hardship circumstances. The legislation also adds victims of domestic abuse to those participants who are eligible to take a hardship distribution. 
• A new online “lost and found” database would assist participants with locating missing or lost retirement benefits. 

The Senate versions of the bill also introduce the following provisions within retirement plans:

• a new “emergency savings” account from which employees can withdraw amounts for qualifying circumstances without penalty; and 
• amounts from a former employer’s plan would automatically roll over to a new employer’s plan, unless the participant elects otherwise.