The Labor Law Insider
Tom Godar
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Tune into Husch Blackwell’s newest podcast, the Labor Law Insider, with members of our labor and employment law team for conversations about recent and anticipated developments in laws and regulations that affect the workplace. Each episode will provide guidance on best practices and strategies that employers should implement as the environment for businesses in all sectors of the economy continues to evolve.
Available episodes
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Nov 16, 2023
Forget the Election: Union Representation Without the Messy Election is the Next Labor Law Reality, Part I
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.
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Oct 9, 2023
Decertification of Union Bargaining Unit: What’s Happening Today, Part II
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.
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Sep 21, 2023
Decertification of Union Bargaining Unit: What’s Happening Today
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.
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Aug 2, 2023
Recent U.S. Supreme Court, NLRB Decisions Highlight Labor Issues in Higher Education, Part II
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.
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Jul 18, 2023
Recent U.S. Supreme Court, NLRB Decisions Highlight Labor Issues in Higher Education
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.
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Jun 27, 2023
Pause Before You Discipline: NLRB Turns Against Civility in Lion Elastomers Decision, Part II
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.
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Jun 6, 2023
Pause Before You Discipline: NLRB Turns Against Civility in Lion Elastomers Decision
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.
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Apr 28, 2023
Non-Disclosure and Non-Disparagement Agreements under Fire: A New Board Decision and a New General Counsel Memorandum, Part II
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.
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Apr 13, 2023
Non-Disclosure and Non-Disparagement Agreements under Fire: A New Board Decision and a New General Counsel Memorandum
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.
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Mar 21, 2023
Union Activity, Employment Engagement, and Changes in the Manufacturing Industry, Part II
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.
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Mar 2, 2023
Union Activity, Employment Engagement, and Changes in the Manufacturing Industry, Part I
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 nu…
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Jan 31, 2023
New Year’s Resolutions for Maintaining a Union Free Workplace, Part II
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 sugges…
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Jan 19, 2023
New Year’s Resolutions for Maintaining a Union Free Workplace, Part I
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 w…
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Nov 15, 2022
Joint Employer Standards Changes, Part II
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 r…
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Oct 21, 2022
Joint Employer Standard Changes: Beware, Part I
Husch Blackwell's Tom Godar of the _Labor Law Insider_ welcomes two new experts as they discuss the shifting standards for joint employer status and the significant impact they can have upon employers, both union and union-free. Tyler Hibler, a labor and employment expert with significant litigation experience, shares his insights from the Husch Blackwell Kansas City office, while Tracy Wolf, a partner with the Husch Blackwell Dallas office, shares her extensive experience in labor and employment counsel and litigation. These two briefly describe joint employer analysis not only under the National Labor Relations Act, but in contrast to the different standards employed under the Fair Labor Standards Act, Title VII, and federal tax and other laws. The Insiders also remind employers that the joint employer review differs as well under various state laws, such as unemployment compensation and worker’s compensation. This sets a whole series of traps for the unwary employer which might th…
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Sep 29, 2022
Better Change Your Policies, Part II
In Part II, Husch Blackwell's Labor Law Insiders Tyler Paetkau and Olga Savage continue their discussion with host Tom Godar regarding the shifting standards applied by the National Labor Relations Board to traditional employment policies. In this episode, the Insiders discussed the blueprint for these pro-labor changes. In this concluding podcast, our Insiders discuss specific policies that might be targeted and proactive actions that employers should explore.
Attorney Paetkau describes the new Board standards, which essentially bless disparaging comments by unions and employees regarding employers and their agents, and which means that policies written during the Trump administration and its Board’s interpretation are likely overbroad. It also means that policies that would prohibit the use of company logos or photos without prior approval or in a disparaging way must now be abandoned for more expansive interpretations of “protected concerted activity.” Importantly, the Board…
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Sep 13, 2022
Better Change Your Policies, Including Social Media, Part I
Labor Law Insider host Tom Godar welcomes two new Labor Law Insiders as they discuss the shifting standards applied by the National Labor Relations Board (NLRB) to traditional employment policies found in almost every employee handbook, including social media policies. Tom is joined by two new California-based Husch Blackwell attorneys, Tyler Paetkau and Olga Savage. These experienced labor counsel review employer policies that are under greater NLRB scrutiny, which is currently dominated by Biden Administration appointees. Tyler and Olga present a compelling argument that the world of labor law will change at a far greater pace than what might be expected by a mere change of administration from Republican to Democrat. This sea change has been almost exclusively through administrative action rather than through federal legislation, although some state legislation is changing the picture in various jurisdictions, such as California.
In August of 2021 General Counsel Abruzzo set forth a…
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Aug 4, 2022
NLRB Adopts Pro-Labor Remedies for Alleged Unfair Labor Practices, Part III
Employers are at the receiving end of the enhanced remedies championed by General Counsel Jennifer A. Abruzzo of the National Relations Labor Board. General Counsel Abruzzo has taken the interesting avenue of highlighting the success of the board in implementing these changes. On June 23, the General Counsel released her Memorandum GC 22-06, which essentially touted the enhanced remedies, or what she described as “full remedies in settlements.” Included in the memorandum were examples of regions securing compensation for derivative economic harm. That is, employers were forced to provide not just full back pay and benefits for employees, but also additional economic relief, including fees for late car loan payments or late rent, or reimbursement of interest payments on loans that were taken out by employees to cover living expenses and even the “cost of baby formula due to the loss of workplace breast pump station.” Further, General Counsel Abruzzo highlighted that the terms of…
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Jul 21, 2022
NLRB Adopts Pro-Labor Remedies for Alleged Unfair Labor Practices, Part II
The National Labor Relations Board, primarily through its General Counsel, Jennifer Abruzzo, has initiated a course of seeking increasingly stiffer remedies from employers who are either found to have committed an unfair labor practice, or even for those who are subject to an unfair labor practice complaint and are merely seeking to resolve the complaint through negotiation with the National Labor Relations Boards (NLRB) agent. As discussed in Part I of this Labor Law Podcast series on remedies, the General Counsel issued two memos (General Counsel memo 22-02 and General Counsel memo 21-07) admonishing the regions to seek even more inclusive remedies, as well as instructing the Regional Directors to initiate the federal court process for injunctive relief earlier in the process and perhaps more frequently than had been the case earlier.
Husch Blackwell's Labor Law Insiders Tom Godar, Terry Potter, Adam Doerr and Rufino Gaytán continue the discussion, and review the NLRB’s more aggr…
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Jun 29, 2022
NLRB Adopts Pro-Labor Remedies for Alleged Unfair Labor Practices, Part I
Husch Blackwell's Labor Law Insiders, Thomas Godar, Terry Potter, Rufino Gaytan and Adam Doerr, offer context to recent NLRB memoranda, including background to NLRB remedies, and contrast the historical reach of NLRB remedies to the broader approach urged by the Board’s General Counsel under her more expansive definition of “full remedies”. Further, the panelists take on the implications of the General Counsel’s pursuit of injunctive relief under Section 10(j) of the National Labor Relations Act, as a preventative tool rather than a remedial one.
The panel also addresses the non-economic remedies that more employers will find unpalatable, including those discussed in the most recent General Counsel memorandum. These include such remedies as letters of apologies to reinstated employees, and the creation of video recordings of a NLRB agent reading notices in the presence of senior charged party officials, among others.
The second part of this episode will further explore the op…
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Jun 1, 2022
Project Labor Agreements Part II
On May 13, 2022, we released Part One related to President Biden’s Executive Order 14063 mandating Project Labor Agreements (“PLA”). Our Labor Law Insiders, Tom Godar, Rufino Gaytán and Michael Schrier, began to explore the requirement that contractors and sub-contractors on large federal construction contracts “negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”
In Part Two of this discussion regarding the impact of the Executive Order, we explore how this requirement of PLAs for construction agreements greater than $35 million may indeed be another avenue that unions might use to organize construction employees. Our Insiders tackle the potential use of publicly available information mandated under the new PLA regulations, and how, in combination with wages dictated by the Davis-Bacon Act, unions might identify and target union-free employers for organizational activity. This disclosed information may be one more helpfu…
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May 13, 2022
Project Labor Agreements Part I
In part I of this series, Husch Blackwell's Labor Law Insider host Thomas Godar is joined by two experienced counsel regarding labor and employment law and federal contractor issues. Husch Blackwell Attorney Michael Schrier is co-Chair of the ABA Public Contract Law Section’s Employment Safety and Labor Committee, which is engaged in monitoring and potentially influencing regulations regarding federal government use of PLAs. Husch Blackwell Attorney Rufino Gaytán is often asked by clients to assist in assessing whether engagement in what are often high-ticket federal construction contracts and PLAs may have hidden trap doors, especially for those who are not frequent federal contractors. This episode of the Labor Law Insider Podcast explores the federal government’s expanded mandate for use of PLAs, and its potential for further encouraging unions to organize union-free companies which choose to participate in such projects.
Be sure to join us for for this and Part II for and int…
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Apr 18, 2022
Offensive Speech in the Workplace - Part II: Drawing the Line
In this Labor Law Insider podcast episode, Tom Godar is joined by Husch Blackwell attorney Sonni Nolan and firm alum Kat Pearlstone, as they conclude their exploration on protection of employee’s speech under the National Labor Relations Act (NLRA). In episode #10, the first in this series, the Labor Law Insider explored how disrespectful, crude and offensive speech may still be protected as concerted expressions under the NLRA. In this episode the panelists look at the standard for review of potentially protected speech, how threats of violence are treated under section 7 of the NLRA, the tricky world of social media comments that target people or business, and some best practices to eliminate or at least reduce the risk of an unfair labor practice charge.
The good news is the return to the more helpful standard for assessing whether protection should be accorded an expression made by the employee. First, the employee will have to demonstrate that he or she engaged in protected con…
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Apr 5, 2022
New York Amazon Employees Vote for Union: What Do We Learn?
Tom Godar, of counsel at Husch Blackwell, and host of the Labor Law Insider, explores the impact of the successful union election campaign at Amazon’s Staten Island distribution center. This is in contrast to the ongoing failure of the union-organizing campaign at the Bessemer, Alabama facility, where Amazon workers have thus far voted, a second time, to reject a union-organizing campaign there.
Labor Law Insider alum, Rufino Gaytán, a member of Husch Blackwell’s Houston office, observes that the election by the homegrown Amazon Labor Union in New York was different than most large organizing campaigns. The Staten Island campaign was led by Amazon employees, Christian Smalls, and his friend, Derek Palmer, who had no Union organizing experience and were not affiliated with any AFL-CIO established Unions. This campaign exploited the treatment of its leaders, and especially Mr. Smalls, who was characterized by senior management as “not smart or articulate”, and was terminated by…
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Mar 28, 2022
Offensive Speech in the Workplace - Part I: Crossing the Line
In this Labor Law Insider podcast episode, Tom Godar and fellow Husch Blackwell attorneys Sonni Nolan and Kat Pearlstone explore the breadth of National Labor Relations Act (NLRA) protection of employee speech that can be disrespectful, crude or offensive. These protections extend to both the non-union workplace and the unionized workplace. Employers are charged with drawing a line at the workplace, curbing offensive, disrespectful, harassing and discriminatory remarks. These disrespectful remarks can be oral or written, placed on employer-maintained bulletin boards or disseminated through social medial. However, under Section 7 of the NLRA, employees have great latitude to engage in protected speech, even when considered offensive or crude or when it targets individuals or businesses. As both National Labor Relations Board (NLRB) and court decisions reveal, there are many instances when employers, whether dealing with a union-represented or a non-unionized workforce, cannot discipline…
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Feb 28, 2022
Understanding the Risk of Strikes Faced by the Healthcare Industry
Healthcare workers and employers have faced enormous pressures during the pandemic, struggling with competing issues related to public health and worker safety. In 2021 there were 14 health care worker strikes, including a handful of works stoppages that lasted weeks or even months. These strikes by healthcare workers related to demands to improve terms and conditions of employment such as hours, safety protocols, and staffing. Wages seemingly took a back door to these issues in several instances. Other unions threatened significant strikes as part of the bargaining process, including a threatened work stoppage of 32,000 workers in California, who reached a last-minute settlement with Kaiser Permanente.
Yet, strikes in the healthcare industry can be particularly disruptive to the communities they serve, whether undertaken by professional staff, or those who perform the maintenance, food service or other hourly functions in a hospital or nursing home setting. Further, there is reason…
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Feb 8, 2022
The Pandemic Economy: Do Recent Strikes Portend the Resurgence of Unions?
The data and Husch Blackwell's labor law attorneys suggest that a union resurgence in most industries is at best uncertain and perhaps unlikely. How does the continued low level of union membership affect the likelihood of union resurgence? Should employers expect to experience significantly increased union membership drives and associated strikes? Which industry is more vulnerable to union organizational efforts?
To hear the answer to these and other timely questions, listen to Husch Blackwell's labor law group discussion about whether the recent labor protests and strikes signal an increase in the risk of labor disruption for employers.
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Nov 12, 2021
Beware the Unfair Labor Practice: Not Just for Unions Anymore
In this episode, Husch Blackwell's Tom Godar, Kat Pearlstone and Sonni Nolan take an in-depth look at what an unfair labor practice is, why non-union employers need to be wary of these federal law violations, and how to avoid running afoul of the National Labor Relations Act (NLRA). They also discuss National Labor Relations Board (Board) General Counsel Jennifer Abruzzo’s recent guidance regarding the types of remedies available when an unfair labor practice occurs.
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Sep 29, 2021
Employer Guidance: Reducing the Risk of a Successful Union Campaign
Shifting social issues in and outside the workplace along with significant public support for labor unions subjects all companies to the risk of a successful organizing campaign, resulting in a unionized workforce. Tune in to our podcast to learn about the steps all employers should take to protect their direct relationship with employees.
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Sep 2, 2021
The Unions Are Coming! The Unions Are Coming!
The Labor Law Insider takes on the recharged union optimism and activity in this podcast episode. Moderator Tom Godar is joined by members of Husch Blackwell’s Labor Law team, Terry Potter, Tom O’Day, and Rufino Gaytán, to discuss the increase in public support for unions, recent changes in organizing activities by unions, and implications for employers. With the benefit of their more than 100 years of combined experience in labor law, our panel discusses actions employers should take to maintain a direct relationship with their employees as unions attempt to increase their organizing efforts in the workplace.
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Jul 30, 2021
The Biden Administration - Expected Changes at the NLRB, Part III
In Part III of the Labor Law Insider series focused on expected changes at the National Labor Relations Board, Husch Blackwell attorneys David Hertel and Laura Malugade discuss, with Tom Godar, two potential developments that would change the labor law landscape and enhance union organization efforts: 1) permitting unions to organize and represent small units of employees within an employer's workforce called micro-units, and 2) union efforts to organize remote workers. Tune in to learn about these potential developments and strategies to proactively address the expected changes.
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Jun 10, 2021
The Biden Administration - Expected Changes at the NLRB, Part II
In Part II of the Labor Law Insider series focused on expected changes at the National Labor Relations Board, Husch Blackwell attorneys Tom Godar, Kat Pearlstone and Rufino Gaytán discuss the impact of the impending policy shift on employer policies and workplace rules regarding employee access to IT systems for nonwork-related communications, facially neutral workplace rules that negatively impact protected concerted activity, confidentiality obligations during internal investigations, and limitations on abusive workplace conduct. We hope you enjoy the discussion.
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Jun 9, 2021
The Biden Administration - Expected Changes at the NLRB, Part I
Husch Blackwell attorneys Tom Godar, Kat Pearlstone and Rufino Gaytán offer insights on how the changes in National Labor Relations Board leadership under the Biden Administration will likely affect employers and the workplace. Tune in to receive guidance.
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