The Labor Law Insider (Tom Godar)

Our Labor Law Insiders tackle the tricky business of collective bargaining in parts one and two of this Labor Law Insider. Host Tom Godar shares the microphone with Husch Blackwell attorneys Jon Anderson and Adam Doerr who have spent countless hours with scores of unions locked into the process of collective bargaining. Listen to their insights on bargaining preparation, agreements between the parties as to the bargaining process, how to move past being “stuck” in the process. These Insiders offer insights on avoiding some of the real stumbling blocks of the bargaining process, while recognizing the possibility that even bargaining in good faith is no guarantee that strikes will never occur. Folks new to this process will be entertained and encouraged, and even bargaining table veterans will gain new insights. Join us for this practical episode of The Labor Law Insider podcast. 

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 firing of National Labor Relations Board General Counsel Jennifer Abruzzo—and the rescission of many of the policies initiated under the Biden administration—is just the start of the new administration’s overhaul of labor policy. Labor Law Insider host Tom Godar welcomes Husch Blackwell’s Rufino Gaytán and Tracy Wolf for this fascinating discussion that takes stock of where we are now and, more significantly, what the next few months will bring as the Trump administration takes full hold of the NLRB machinery.

The insiders discuss not only the expected pro-management changes to come, but the unexpected appointment of a union-friendly Department of Labor secretary and pro-union comments by the president regarding the longshoremen who threatened a strike in January. Please join us for this entertaining discussion of what we know about real or potential changes in policy, including how the administration will likely approach the National Labor Relations Act. The insiders offer predictions for what might happen and when. Part II of this podcast will assess how these changes will impact policies and processes of employers in every sector and industry.

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 helpful piece of information for unions, courtesy of the Biden administration and its effort to be the most union-friendly administration ever.

The guests also explore when we might expect publication of the regulations, and how they might resemble or differ from those already in place under the current Obama-era PLA Executive Order. The Federal Acquisition Regulation Council may issue such new regulations as soon as June 4th of this year.

Importantly, attorneys Gaytán and Schrier will discuss possible legal challenges to these regulations, as well as cautions for those non-union entities who might seek the benefit of large government contracts and in so doing, become entangled in the PLA’s with various unions. For contractors inexperienced in such matters, engaging in PLA work may have hidden trap doors wholly apart from potential union entanglement for union-free companies.

We invite you to listen to this interesting presentation, not only for the specifics of the PLA impact, but to assess the breadth of impact that a seemingly simple expansion of regulations can have on both union and non-union federal contractors alike.

Husch Blackwell’s Tracy Wolf and Rufino Gaytán continue their engaging discussion with Labor Law Insider host Tom Godar regarding changes being initiated at the National Labor Relations Board (NLRB) under the Trump administration. The conversation explores questions about the viability of mandates under the NRLB’s recent Cemex and Stericycle decisions. The discussion also tackles the impact of a more management-friendly NLRB on unions that are filing charges or seeking certification elections. 

The insiders also anticipate the practical, day-to-day changes in policies and practices that employers may consider given recent developments. For instance, should employers communicate differently with their employees under this new regulatory regime, and should handbooks and policies be revised? Jump into Part II of this fascinating discussion regarding the ever-changing world of labor law.

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.

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 conduct, that the employer knew of such conduct and the employer acted with animus against the protected activity by counseling, discipline or discharge. Upon this proof, the employer would have the burden to respond and offer a legitimate business reason, not based on protected Union activity, for its action. General Motors LLC, 369 N.L.R.B. No. 127, 2020 BL 270474.

One area which can cross the eyes of an employer is related to possible threats of violence, and whether they would be entitled protection under the NLRA. In those cases, the Board may assess whether a provocative statement, is mere hyperbole, or a legitimate threat of violence. Kiewit Power Constructors Co., v. NLRB, 652 F.3d 22 (D.C.Cir. 2011). Employers would be asked to excuse certain threatening words as essentially not credible but are left with the near impossible task of ferreting out real threats from just excited expressions.

Another focus of the discussion is on statements receiving protection made via social media comments. Indeed, as employees work from home at an increasing rate during and following the COVID pandemic, more of these offensive and possibly harassing or threatening comments may come through the internet and social media as opposed to directed activities in the workplace. As a result, employers will have a very difficult job of not only interpreting whether these statements may be protected, but even investigating these comments. For instance, it is not unusual that employees who are identified as making these social medial comments would deny making those statements and merely claim that their account was hacked. This presents a very difficult burden for the employer to prove or disprove that an account was hacked, yet at least some decisions experienced by our Labor Law Insiders suggest that that is precisely the burden the employer would carry. This may be true in the context of a disciplined or fired employee claiming an Unfair Labor Practice, or if actions were challenged, not under the NLRA but, for instance, in the context of an arbitration under a collective bargaining agreement appeals process. Further, other “innocent” employees complaining about comments, may not offer sufficient proof of harassing or threatening conduct if the victim making the complaint has since deleted the text or other comment from his or her social media feed.  

At least one option for the employer is to ignore gross or disrespectful comments on the internet or through social media, with the hope that they will soon fade away, and with the recognition that rising to the bait of such comments with a response may only render greater public dialogue and further exposure of often untrue statements.

As with so many of these issues, the panelists urge hiring and retaining excellent supervisors who are trained not to react, but to act with deliberation upon receiving or reviewing such obnoxious comments. Most employers have crafted policies which prohibit disrespectful speech, but supervisors must be trained in filtering through such policies to understand the implications of protected speech under the NLRA. In those cases, of course, counsel should be consulted for the latest iteration and interpretation of the breath of protected concerted action as interpreted by the NLRB and the Courts.

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.

Labor Law Insider host Tom Godar engages in a lively discussion with guests Trecia Moore, Megann McManus, and Terry Potter regarding remedies in matters involving unfair labor practice charges. The centerpiece of our discussion is Thryv, Inc. v. National Labor Relations Board, a recent case in which the Fifth Circuit Court of Appeals took up questions relating to a National Labor Relations Board (NLRB) order that sought to challenge and reverse a company’s unilateral layoffs during a bargaining impasse. The employer, a Yellow Pages advertising vendor, had properly and legally implemented its Last Best Final Offer (LBFO) protocols and instituted its workforce reduction per the LBFO, but the union charged it with unfair labor practices before the NLRB anyway. What ensued next was unusual, even for the Biden administration’s NLRB. The Board overruled its own administrative law judge (ALJ) when the ALJ returned only a partial victory in the Board’s in-house venue and slapped Thryv with what the circuit court later called “a novel, consequential-damages-like labor law remedy.”

We explore what made the Board’s order noteworthy, why the circuit court ultimately dismantled most of it, and the likely future for so-called make-whole remedies.

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 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.

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.

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 settlement have included letters of apology to reinstated employees, mailing of the notice to all employees who had been employed at the time of or during the previous year, permitting union use of company bulletin boards, and even creating a video recording of a board agent reading the notice of violation while a company representative is in the frame, to be distributed to employees at the workplace. One can only imagine where else that video is distributed.  

Labor Law Insider attorney Terry Potter of Husch Blackwell not only touches on this memorandum, but also reviews developments related to the Starbucks organizing campaign. There, the board is demanding remedies of bargaining orders and other broad relief in the context of alleged unfair labor practices. Finally, listeners will hear of bargaining orders even without any majority showing of union support by the employees. 

Terry also describes at least one potential strategy of taking a settlement which might not be approved by a regional office of the NLRB to the Administrative Law Judge (ALJ) assigned to hear the case, as the ALJ may not feel as beholden to the General Counsel’s mandate of harsh remedies.

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.

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.

Labor Law Insiders Trecia Moore, Megann McManus, and Terry Potter continue their discussion with Labor Law Insider host Tom Godar regarding remedies the National Labor Relations Board is trying to impose for unfair labor practices. The Fifth Circuit overturned the Board’s Thryv decision and described the Board proposed remedies as “Draconian” and containing a “novel, consequential-damages-like labor law remedy” not generally available under the National Labor Relations Act. The Insiders also consider the aggressive remedies imposed by the Board in the Cemex case, mandating union recognition and issuing a bargaining order upon an employer whose unfair labor practice occurred in the course of a union campaign.  Listen to the practical discussion reviewing these developments and some takeaways that can help companies manage regulatory risk.

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 or terminate an employee for what might otherwise be considered prohibited conduct either in the workplace or impacting the workplace. Oftentimes a protected comment or statement can occur in a non-union workplace when employees are criticizing management or management policies, disrespecting specific managers or owners, or even harassing co-employees. These aggressive and offensive expressions can also occur when a union is attempting to organize in a non-union workplace. An employer’s initial reaction is often to discipline or discharge, consistent with a policy that prohibits such disrespectful or harassing speech. These expressions can also take place when a unionized workforce is engaging in a strike or picketing activity. Indeed, some of these statements can be seen as discriminatory or harassing, based on protected characteristics such as race, but may still receive protection under Section 7 of the NLRA. Employers are called upon to exercise extraordinary discretion in the balancing of Section 7 rights of protected and concerted expression with the rights of employees to work in a place free from discrimination or harassment under federal and state law. This podcast explores many of these issues and reviews both cases as well as practical circumstances in which these questions arise. A companion podcast, to be released in about two weeks, will delve more deeply into the issues of expressions which might be construed as a threat of violence, as well as those made in the social media context. Our expert panelists will then describe when these free speech protections become so disloyal, reckless or maliciously untrue as to lose protection. Kat and Sonni will also assess other cases in which the NLRB may find such obnoxious expression merely to be “protected hyperbole.” This podcast will begin to offer guidelines on recognizing where those lines are drawn, and how to avoid the enormous cost and distraction of serious NLRB litigation focused on employee speech. Importantly, that companion podcast will also explore with greater depth the steps employers can take to curb such expression in the first place, and how to respond to disrespectful and offensive speech, threading the needle of enforcing well-drafted policies and keeping away from violation of employee rights under the NLRA. Stay tuned, and look for that podcast in mid-April.

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 in its Staricycle case asked for comment on a new tougher standard, one that would prohibit any policy that may have a potential chilling effect on employee activity comments and communications regarding workplace issues. Such a broad interpretation of Section 7 rights is an abrupt change from decisions only announced a year ago by the same (Trump) National Labor Relations Board. 

Attorney Savage refers to the Activision Blizzard NLRB decision, where the Regional Director targeted a facially neutral social media policy. Our Insiders also predict that the Board will be more interested in audits of policies, and that unions interested in organizing employers will file charges of a violation of Section 7 of the Act based on employer’s over-broad policies, creating leverage for those organizing activities. 

The remedies for such a Section 7 violation could be injunctive relief, rewriting of policies, the time, expense and energy engaged to defend against the charge; of course, if the employer terminated an employee for supposedly violating such a policy, the employer would be faced with the reinstatement order and back-pay remedies. Attorney Savage reminds the audience that part of this remedy is the “scarlet letter” order that is posted or placed on a video recording of the employer essentially apologizing or remarking about the violations in which it had been engaged.

Bottom line: Our Insiders suggest taking a careful look at social media policies, code of conduct policies, and workplace investigation policies that include confidentiality requirements, as well as severance agreements that may include certain restrictions. However, prohibitions on sharing trade secrets, and vulgar, obscene, or intimidating language may also be prohibited, but the specific words used for such policies must be examined very carefully.

The Labor Law Insider is excited to share this episode, an exclusive interview with Rebecca Dormon, former assistant regional director of the National Labor Relations Board (NLRB) Region 15, as she shares her story for the first time of election abuse in ballot elections conducted over the last year and a half. Rebecca tells host Tom Godar and Husch Blackwell attorney Megann McManus how she became a whistleblower, shines a light on the improprieties and irregularities corrupting mail ballot NLRB elections across the country, and explains how the revelation led to a broader investigation into how elections were conducted across the agency.

After decades of service with the NLRB, specializing in conducting elections “by the manual,” Rebecca was compelled to take on the unenviable role of a whistleblower and ultimately move into the role of labor relations consultant to guide and train employers in NLRA compliance. Rebecca’s story sheds light on the concerns of private businesses regarding the NLRB’s role as a neutral agency in union organizing efforts. Join us for this first-hand, behind-the-scenes glimpse of agency action and a candid discussion of NLRB bias.

In part two of this thought-provoking podcast episode on the tricky business of collective bargaining, Husch Blackwell attorneys Jon Anderson and Adam Doerr share war stories and real-life advice with host Tom Godar. Their discussion covers, among other items, how to deal with theatrics at the bargaining table, what to do when it looks like negotiations are getting stuck, and how do you bring bargaining to a close. There is art, science, and law involved in good-faith bargaining, and being prepared—long before seeing the union at the table—is the key to success. Veteran bargainers will be nodding their heads, and those new to the bargaining table will walk away with a whole new bag of tricks. Join us for part two of this practical episode of the Labor Law Insider podcast.

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. 

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.

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.

Labor Law Insider host Tom Godar is joined by Husch Blackwell attorneys Mary-Ann Czak and Rufino Gaytán in Part II of our post-election analysis of labor law and policy. 

The Insiders discuss anticipated Trump administration changes that will likely reverse some of the policies and decisions of the current National Labor Relations Board (NLRB) and its General Counsel. Our guests review seminal cases reflecting the current Board’s interpretation of the NLRA, which have redefined unfair labor practices and the reach and authority of the NLRB. 

Also included is a brief discussion of the very surprising nomination by President-elect Trump of Lori Chavez-DeRemer to lead the Department of Labor. This pro-union pick is causing consternation and speculation among those in the employer community. Join us for this must-listen installment of the Insiders for perspectives on where labor policy could be headed under a second Trump administration.

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.

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. 

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.

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 think that it has no responsibility for those individuals performing services at the workplace, only to discover that the law deems those individual employees and agents of the business. 

Tyler emphasizes that all these laws start with the basic premise that some level of control by the reputed joint employer is the center piece of any analysis. However, it is at that point that special attention must be paid to the tests and standards under the National Labor Relations Act. Tracy offers a brief history of joint employment standards and brings us to the rulemaking of the Trump administration in 2020 that was seen largely as employee friendly and created a framework that called for actual control of activities by the joint employer. 

In contrast, the Biden Board has initiated rulemaking only two years later that would significantly change the landscape. The largest significant change would not rest on actual control maintained by the employer, but would assess the potential ability to control aspects of the individual’s work life, such as performance, evaluation or compensation. This new standard could significantly affect the identification of those who can be represented in collective bargaining, who can participate in union elections or whose concerted activity could be protected under the National Labor Relations Act. Individuals and unions could claim unfair labor practice by an employer who thought that these persons were only subcontractors or the employees of a temp-to-hire or temporary employment arrangement. In this podcast, our Insiders begin to share some of those consequences. 

In our follow-up Labor Law Insider podcast on this subject, Tracy and Tyler not only flesh out some of the significant consequences that will occur as a result of this change (and it is clear that this change will likely take place as the rule becomes adopted, probably with only very modest variations), but also what steps an employer might take to guard itself against the unintended consequences of being engaged in joint employer status. Enjoy this podcast, and please be sure to listen to the concluding podcast coming soon.

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 to anticipate greater organizing activity in the health care sector, and often that activity is accompanied by work disruptions as part of the campaign, or after a successful union vote when the parties are bargaining or reach impasse on a first collective bargaining agreement. Join our Labor Law Insiders: Husch Blackwell's Tom Godar, Terry Potter, Adam Doerr and Rufino Gaytan as they discuss the unique vulnerabilities faced by the healthcare industry at this juncture of history, including the impact on bargaining and of expanded union organizing activities. Our Insiders also explore some actions that employers can take to reduce the possible conflicts between employees and management during this time of extraordinary challenge in the health care market.

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. 

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. 

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 blueprint for these pro-labor changes, which called for changes related to confidentiality policies, union access, and many more employer handbook rules. That blueprint is now being followed in still more GC memorandums, as well as ALJ decisions, which show a sharp turn from the policies that the Trump NLRB had initiated. See the contrast in the two NLRB cases in less than one year, one decided by the Trump-majority NLRB, and the other by the NLRB with the new Biden appointments. One of the more frustrating results for employers is the lack of predictability as to how facially neutral policies might be reviewed and found in violation of the National Labor Relations Act.

This makes it difficult for employers to know what to do when they see highly derogatory comments on Facebook or in social media regarding their company when it seemed unlikely these were within the context of what traditionally had been identified as protected concerted activity but is now being seen in exactly that light. Essentially, the Board is—one policy at a time—undoing the more employer-friendly standards that had been in play under the Trump and Obama administrations. 

As the podcast closes, Olga Savage gives a brief but compelling description of how the standard of reviewing policies has changed. If an employer adopts a neutral policy, not targeting traditional organizing activity or activity related to concerted discussions among employees about wages, hours, working conditions, the review of that policy and its application revolves around the potential to chilling impact on employee expression. Such a policy that could be interpreted as having that impact, regardless of employer intent or the express disclaimer regarding protected concerted activity, i.e., Section 7 rights of employees, will itself be seen as a violation and give rise to the possibility of NLRB violations and remedies. 

Our companion Labor Law Insider podcast, which will follow in a very short time, goes into greater detail and specific application of these changes. Tyler and Olga discuss how these NLRB changes will affect employers reviewing handbook policies that relate to such standard areas as confidentiality, discussion of individual wages, rules for employer investigations, or use of the internet to criticize the employer or its agents. Enjoy this podcast and stay tuned for its follow up podcast in about two weeks.

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. 

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.

Labor Law Insider host Tom Godar is joined by attorneys Tyler Paetkau and Jason Montgomery to discuss the ever-changing labor law implications for college athletes. We dive into the issue of whether student athletes have the ability to be recognized as employees for purposes of forming unions and to receive compensation for use of their name, image and likeness. This engaging conversation explores the impact of the new Trump administration on the willingness of unions to push for recognition of student athletes as employees.

The Insiders also discuss the proposed settlement of the House case which would resolve the litigation around NIL compensation for student athletes and establish rules for NIL money distribution to student athletes. Tyler and Jason also offer thoughts regarding legislative responses to this changing area. Join the Labor Law Insiders for this terrific exchange on one of the most interesting areas affecting the labor law today.

Husch Blackwell attorneys Mary-Ann Czak and Rufino Gaytán join Labor Law Insider host Tom Godar in a post-election analysis of anticipated policy changes in connection with the incoming Trump administration. 

The National Labor Relations Board (NLRB) became stridently pro-union under the leadership of its General Counsel Jennifer Abruzzo and the majority of the board members appointed by President Joseph Biden. Through decisions and general counsel memos, the board marched an aggressive path extending the reach of the National Labor Relations Act, including shortening the time for elections, upending a decades-long election process, stiffening remedies for unfair labor practices, and skewering employer policies in both union and nonunion settings.

In Part I of our discussion, our guests explore both the process to be undertaken to appoint new board members and a new general counsel and the pace at which that might happen, as well as policy changes which could be expected even in the first days and months of the Trump administration. The discussion will carry over into Part II, where we will address specific decisions, as well as the risks and benefits of anticipating a more neutral NLRB on the horizon. Join us for this fascinating post-election discussion on the Labor Law Insider.

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 Part II of this exclusive Labor Law Insider podcast, former National Labor Relations Board Assistant Regional Director Rebecca Dormon continues to share her story of becoming a whistleblower against the federal agency she served for 25 years. Husch Blackwell’s Tom Godar and Megann McManus—and now you—are the first to hear the details of this transformative journey that shines a light on irregularities impacting mail ballot NLRB elections to the advantage of organized labor. 

In this episode, Rebecca shares deep concerns that the Board is no longer a neutral agency protecting employees’ rights but is yielding to pressure to be a union tool. Please join us for the conclusion of this first-hand, behind-the-scenes glimpse of agency action and a candid discussion of NLRB bias.

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. 

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.

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.

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. 

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. 

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 aggressive posture for 10(j) injunctive relief, which must be granted by federal courts. In addition, the discussion reviews the potential impact of tougher remedies, including the incentive for employers to litigate more often since they gain very little relief from a settlement when the Board is seeking full remedies. This reluctance to settle a charge might be even greater given the Board’s insistence that employers publicly record and distribute a notice admitting to the alleged violations of the Act, or even apologize to workers if the Board concludes that they were subject to discrimination based on their protective and concerted activities. 

The Labor Law Insiders emphasize that employers should take appropriate steps to avoid, or at least minimize, the likelihood that an unfair labor practice (ULP) claim will be filed. Our panel suggests that there must be a renewed emphasis on training supervisors and communicating effectively and with transparency with employees.  In addition, employers should review handbooks and other policies that might invite the Board’s scrutiny as it seeks to reverse Trump-era decisions and expand its interpretation of employee and union rights, especially as it relates to work rules pertaining to social media use and other employee communications. In addition, review by counsel of actions that might result in employee discipline or discharges is essential, given the greater risks and costs of facing a ULP charge. 

Even while this podcast was being recorded, the General Counsel issued still another remedies memo (General Counsel memo 22-06), which celebrates and advocates for very harsh remedies for alleged ULPs. In addition, the Board is seeking broad remedies related to some of the hundreds of Starbucks organizing efforts, including bargaining orders as opposed to new elections, when it believes that employees’ rights to participate in an election have been violated. Those developments are the focus of a special third part to this Insider podcast series, featuring attorney Terry Potter. Terry draws on his experience and expertise to describe these changes and the further impact they have upon employee, union and employer behavior. Stay tuned for Part III of this series, which will be released very soon.

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.

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.

Labor Law Insider host Tom Godar continues his engaging conversation with Insiders Mary-Ann Czak and Terry Potter as they assess the challenges employers face from numerous recent policy reversals offered by the National Labor Relations Board. Mary-Ann and Terry work through real-life scenarios in light of these changes, which now force employers to rethink how they approach drafting policies and monitoring and disciplining employees for workplace and online behaviors. In part two of this fascinating exchange, the Insiders offer suggestions on how to engage and train frontline supervisors and how to approach employee communications and decision-making in light of the expanded definition of protected and concerted activities. Join us for continuation of this lively discussion.

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 interesting look into Project Labor Agreements and how they fit in to the overall pro-union strategy of the Biden administration.

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.

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 options for reviewing and potentially resolving complaints, the incentive to defend against such ULP complaints through trial, and the steps to be undertaken to avoid, as far as can be possible, the threat of employees charging employers with unfair labor practices.

Husch Blackwell partner Tyler Paetkau joins Labor Law Insider host Tom Godar to discuss the latest assault on non-compete agreements and their various iterations. While an August 2024 district court order enjoined the Federal Trade Commission’s recent action to ban virtually all non-compete agreements, and the FTC has since withdrawn its noncompete opinion, the National Labor Relations Board (NLRB) continues its campaign against non-competes, with NLRB General Counsel Jennifer Abruzzo publishing a memo last month doubling down on the policy position reflected in her May 2023 memo, namely, that “overbroad” non-competes are unlawful.

Listen to this instructive exchange between Tom and Tyler as they walk through recent pronouncements from the NLRB on non-compete agreements and the remaining exceptions that might provide an opportunity for employers to continue with narrowly tailored agreements to assist employees on accepting employment opportunities, finding educational opportunities, and more.

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 the company. Their tactics included a very personal and direct approach which resulted in 2,654 “yes” votes for Union representation out of a reported 8,325 eligible voters. This success was aided by several decisions by the National Labor Relations Board, when Mr. Smalls and other union supporters sought reinstatement following their termination from employment and brought Board charges seeking greater access to the employees by those engaged in organizing for the union. In addition, the organizers relied heavily on social media presentations broadcasting and attempting to refute captive audience presentations by management or witnessing the arrest of Mr. Smalls in near real time when he was allegedly trespassing at the Amazon facility. This low budget union organizing campaign led by amateurs was in stark contrast with the recent vote in Bessemer, where the Union received only 875 yes votes following a second election, while the employees rejecting the Union garnered nearly 1,000 votes. The union-friendly Board, led by its General Counsel Jennifer Abruzzo, forced a second election, rejecting the results of a vote taken about a year ago, which the union lost by a two to one margin. That campaign has been led by a national union pouring in money and professional organizers and receiving support from politicians and celebrities. Mr. Gaytán suggests that both management and Union organizers have much to learn from this successful effort for the Amazon Labor Union in New York City, and offers analysis and observations garnered from his own experience advising employers. This highly personalized union campaign, which put a spotlight on employer policies and disciplinary actions, should spark managers everywhere to think differently about treatment of employees well before any Union activity begins, and certainly suggests that employers should change their approach in responding to Union threats and Union campaign activity.