KemLaw

With the pandemic continuing to disrupt normal business processes, several labor law issues hang over employers.

Here are three that are worthy of attention:

• Can employers or unions force the other side to negotiate by video-conference or phone? 

  Given that COVID-19 is most easily spread in closed quarters, with close contact, meeting in person to negotiate a new contract is generally not recommended.

  That fact raises the question as to whether either party can force tele-bargaining onto the other party.

  The National Labor Relations Board (NLRB) looks at the bargaining process from the standpoint of which issues are “permissive” and which are “mandatory.”  They have long held that the parties can negotiate over either but may only take a hardline on mandatory issues.  In terms of negotiations, NLRB generally holds that the manner in which negotiations are held is in the permissive category (eg., whether a stenographer is present to record sessions, whether a session is videotaped, whether an agenda is prepared, whether a mediator is present, etc.).

  How do they feel about video-conference or phone negotiations?  No one yet knows.  Our advice to employers – use caution on this topic and don’t assume it’s one or the other.

• During COVID-19, can employers make unilateral decisions about working conditions? Afterall – the pandemic has created unforeseen challenges that require quick decisions.

  This question has the potential to be problematic for employers since most bargaining agreements require that changes to working conditions be negotiated.

  On March 27, the General Counsel for the NLRB issued a bit of guidance on the matter.  In a memo primarily summarizing employer obligations on unilateral decisions, the General Counsel stated that given the current crisis, employers might have some latitude on the topic.

  Not much to chew on there – so you can expect more from the NLRB on this topic.

• During the pandemic, may unions hold in-person elections, or must all elections be mail-in only?

  Another tricky one in a time when social distancing is preferable to in-person contact.  On this matter, NLRB has issued a memo outlining ways in which different regions can consider in-person balloting – however, the guidance is not binding.

The upshot of it all?  COVID-19 continues to create new challenges for employers and organized labor.  Those challenges are likely to grow over time.

If you’re an employer and have questions about labor and employment law, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut.  We do one thing and one thing only – we are exclusively an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region.  What’s more, each of our attorneys has over 25 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy.  Please contact us if we can help you.

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