As pendulum swings far left, it’s ‘harder for employers to know what’s legal and illegal,’ says employment attorney
A years-long fight over the rights of fast-food workers might be reaching a climax this month, as state legislators revisit a bill brought forward by California union organizers that could force multi-billion-dollar franchise chains to take more responsibility for the treatment of workers.
The battle has union organizers and industry heads facing off in what could be a watershed moment for the rights of workers, Politico reported. Or it could be a wide-reaching economic disaster.
HRD spoke with Rob Boonin, labor and employment attorney with Dykema, to get his take.
“I have seen the pendulum swing back and forth in the past, but I've never seen it swing so far to the left as it has recently,” he said. “And that's just making it easier for unions to organize and harder for employers to know what's legal and what's illegal under the National Labor Relations Act.”
Stericycle focuses on workplace policies, union organizing
One example of this, says Boonin, is the August 2, 2023 Stericycle, Inc. and Teamsters Local 628 NLRB decision, reported in HRD earlier this month. Stericylce Inc. stated employers must consider the “chilling effect” their workplace policies can have on employees’ ability to form unions; in its decision, the Board stated “the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable.”
This rule essentially makes it impossible for an employer to manage unionization efforts among its own workforce, he says.
“[Stericyle, Inc.] calls into question many very routine handbook policies, things that have been used for many, many decades and been legal,” Boonin told HRD. “Even if you had a legitimate reason for the policy, if a hypothetical employee could read that policy in a way that would discourage the employees from engaging in a concerted activity — whether it's complaining about some work rule or wages, or the way a manager treats them — then the rule is presumptively illegal. And then to overcome that presumption, it's almost an impossible task.”
The types of policies the Stericycle Inc. decision limits include disciplinary rules around social media use, company confidentiality, talking to the media, or civility in the workplace.
“So it's hard to write a policy nowadays, a handbook that will survive the scrutiny of the new board,” said Boonin. “Employers don't want to fight or litigate – some companies would go broke. They're too small to take on a case and appeal the National Labor Relations, to the Court of Appeals, and then the Supreme Court, it takes a lot of money. So employers are intimidated by this. But it just means that, hopefully, you have HR professionals who are keeping track of all this, and who have their lawyers on their speed dials.”
Preventative action to head off union organizing before it starts
In Detroit, Michigan this week, United Auto Workers (UAW) is threatening a strike against General Motors Co., Ford Motor Co., and Stellantis (the company that owns Fiat, Jeep, Ram, Dodge and Chrysler brands), Forbes reported — due to supply-chain issues stemming from the pandemic, and the advance of electric car sales, carmakers have “about one-fifth” of 2019 inventory, leaving dealers more vulnerable to a strike.
According to an analysis by Anderson Economic Group, if the UAW strikes against all “big three” car manufacturers, the industry could see a loss of $3,511 million within days.
What advice does Boonin have for HR? Listen and communicate, before a strike is necessary, he said, so “the employees understand there's a reason there's a lot of overtime, or there's a reason that there's layoffs, or other changes, or use of more automation … in an ideal world, be a little more a part of the process,” said Boonin.
“One of the things that always pops up in terms of dissatisfaction is that ‘No one listens to us.’ I'm not sure you can please all the people all the time, but I think if more attention is paid to listen to the employees and communicating with the employees, about what's going on and why, then that will help manage those expectations, so that it doesn't take a strike in order for them to get the message.”
How to avoid union strikes and costly litigation
Fast-food franchisors have spent almost $80 million to try and make sure the bills put forward by the Service Employees International Union (SEIU) don’t pass, Politico reported. The main aim of the bills will be to instate a special board of governance to protect fast-food workers from wage theft and other poor treatment from franchisors.
“The pressure these conditions place on franchisees’ profit margins increases the likelihood that franchisees will have difficulty complying with regulatory protections,” said the proposed legislation.
Not all companies have millions of dollars to spend in litigation, says Boonin. This makes pre-emptive diligence on the part of employers increasingly important as more striking activities make headlines.
“I just want to emphasize that what we see in the media on these high-profile cases doesn't mean that it's everywhere, that everyone wants to strike. Not every employee thinks that the employer can survive a strike,” he said.
“Invest a little bit now, so you don't have these problems down the road. Let's communicate with our employees, and improve transparency, and make sure employees understand why we're doing certain things. And all those things are in the bucket of preventative measures – let's work with that, rather than working with bullets.”
