Thursday, September 24, 2015

Regulatory (and Administrative) Overreach?

DOL and White House touting unions…….

If you’ve ever read any of my blog posts, you probably already know that I think some of our federal regulatory agencies (as well as state counterparts) and legislation in the employment arena is overreaching, business-unfriendly, and unnecessary. The EEOC has inserted itself into corporate wellness programs – and contradicted the ACA in the process; it has been slapped around quite a bit in the courts with its aggressive stance on criminal background checks. And, of course, we have the NLRB wanting to make every company policy and rule an unfair labor practice, and blurring the contractual line between franchisors and franchisees.

Well, here we are again. Both the Department of Labor (DOL) and the Obama administration are delving deeper in this territory. In addition, Democratic legislators are helping.

First up, we have the Workplace Action for a Growing Economy (WAGE) Act, which would greatly expand the scope of the National Labor Relations Act. This bill would increase the National Labor Relations Board's authority to seek redress for complainants, and authorize the award of civil fines against employers. Specifically, it would strengthen the penalties that the NLRB could assess against an employer charged with violating an employee's Section 8(a) rights. An employer could be liable for back pay in addition to liquidated damages in the amount of double back pay.  Violations deemed to result in "serious economic loss" to the employee could result in additional civil penalties of up to $50,000 per violation, or up to $100,000 per violation if the employer is a repeat offender.  Corporate officers could be held personally liable. It would also eensure employers will be jointly responsible for violations affecting workers supplied by another employer. (See the Littler article for more details.)

As Littler states, there is little chance of this bill going anywhere given the current makeup of Congress, but it is an indication of the willingness of legislators to promote the advancement of unions over the very entities that create jobs. The NLRA, as well as numerous other laws and regulations, already have quite severe and far reaching penalties for violations of employment and labor laws. Adding additional sledgehammers to the process is ridiculous; and giving even more power to the NLRB (who is doing quite fine in wielding power as it is) is frankly outrageous. Maybe it’s just an attempt to be seen as a friend of the "working class" ahead of the coming elections. Union membership in the private sector stands at 6.6%.  Many people believe the decline in union membership has way more to do with the perceived lack of value in union membership as opposed to any efforts by businesses to interfere with unions. In fact, according to a Gallup survey, the image of organized labor had suffered, sinking to an all-time low of 48% in 2009 and only 37% of Americans want unions to have more power. While these numbers have decreased slightly from the last survey, it still indicates a lack of confidence in what unions can offer employees.

And now for a double whammy. The Department of Labor, by its own definition, is to administer and enforce the more than 180 federal labor laws voted on and enacted by the people (although some would argue the part about "voted on by the people"). Clearly, unionizing and collective bargaining is one of those rights. However, the DOL has put out this video, which also pretty clearly promotes unionizing and more than implies that the only way to improve workplace conditions is to increase union membership.

Now, the White House and the DOL have partnered up to hold a "workplace summit" On October 7th, 2015, The White House has announced its "Summit on Worker Voice." According to the White House: it and the Department of Labor will bring together workers, labor leaders, advocates, forward-leaning employers, members of Congress, state and local officials and others to highlight the relationship between worker voice and a thriving middle class. They want "both seasoned and emerging leaders from across the country, who are taking action in their communities to lift up workers’ voices — to be active participants in this conversation."

The White House wants your employees to nominate workplace "voice leaders," those who:
  • Join with co-workers to discuss common workplace issues in a constructive and productive way.
  • Support workers in seeking workplace policies that better respond to worker needs and concerns.
  • Seek feedback — for example, through surveys — from employees to learn what really matters to them.
  • Open a dialogue among workers, managers, and supervisors about what works best in your workplace.
  • Create dialogue with co-workers and employer leadership about ways to expand voice in the workplace.
  • Reach out to workers who have never had a voice in the workplace to let them know that they are not alone and broaden the conversation on the future of the workplace.
Laudable goals. Sound familiar? Basically, this administration is looking for employees to join together to discuss wages, hours, and other terms and conditions of employment, a right that the National Labor Relations Act already gives to your employees. But here, the administration and a federal regulatory agency are promoting unionization. Promote the worker – absolutely. Help provide opportunities for people to succeed – you betcha. Pimp unions at the expense of sound business practices? No.

This administration has already done much to make it far easier for unions to form, and much more difficult for businesses to respond to those efforts fairly and completely. Using executive fiat to effect major changes in employment laws/regulations and now actively promoting labor unions does not seem like it should be the proper purview of either the White House or the DOL. 

Labor Secretary Thomas Perez said in a blog post that the meeting will "highlight the value of collective bargaining" and dig into challenges workers face joining unions today. I’m not sure what challenges he’s referring to, since as is known, the NLRA already makes this a right, with significant penalties for businesses who interfere with that right. This statement flat out reveals the true motivation at work here. The administration also said it launched an online tool to allow workers to tell the government how they’ve challenged their employers to treat them better at work.

It seems to me that the pendulum has not only swung too far in one direction, it’s in danger of completely breaking. Hopefully, our economy (and the job engine of private business) won’t break right along with it.

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