Myriad Cuts & Subtle Encroachments

Myriad Cuts & Subtle Encroachments

There’s so much more where these stories came from, reports on another labor-friendly legislation or regulation, and always the same theme, more burdens on emerging private companies. None so horrendous at first glance, none without far reaching consequences – and none without numberless counterparts, assaulting any entrepreneur – who just wants to do honest hard work and earn profits – with excessive, ceaselessly multiplying and mutating compliance obligations that drain life from the enterprise. Bring on the attorneys, the IT professionals, the CPAs, pay the highly-compensated mercenary army enabled by endless legal minutia. Perhaps none of this matters, because like the draught horse in Animal Farm, the strong and able will work harder. Here are a few more weights for the sledge:

How the Paycheck Fairness Act Would Increase Employment Litigation

HR Policy Association Policy Brief

“The “Paycheck Fairness Act,” passed in 2009 by the House of Representatives and currently being considered in the U.S. Senate, would direct the EEOC to collect sensitive pay and compensation data from all covered employers, which it can then disclose publicly, either on its website or through a Freedom of Information Act request. The EEOC would be given virtually unlimited discretion in determining what wage data employers must report, including the pay of named individuals at any level of the company. Thus, plaintiffs’ attorneys looking to bring pay discrimination suits could search the pay data of one or more companies, looking for a target. Meanwhile, the bill would make it easier for those attorneys to bring lucrative class actions suits by changing the current rule—which requires individuals to “opt in” to a class action suit—to one that includes them in the suit automatically unless they take affirmative action to opt out.

Obama’s Labor Department Again Pushes Forced Unionism

by Russ Brown, November 11th, 2010,

“The Labor Management Disclosure and Reporting, also known as Landrum-Griffin Act (1959) came as a result of wide spread corruption throughout union leadership ranks. The legislation forced unions to start reporting how they spend the money they receive from member dues. In addition, it also required companies, law firms, and consultants to report their activities and expenditures used to persuade employees to vote against a union in a campaign. The Solis Department of Labor is moving to make rule changes that will greatly increase the union’s ability to threaten litigation. Just as unions can use the Unfair Labor Practice (ULP) charge against employers when they would fire an employee, ANY employee with or without cause, unions would be able to use this rule change in such a fashion. Employers would soon fear any conversation with employees, no matter how innocuous.

Under section 203(e) of the LMDRA it clearly states that officers and supervisors of a company do not have to report their “persuader” activities (talks with employees regarding unionization) during a union campaign. This is the change that triggers the above scenario. The change will require companies to report all conversations that management has with employees about the unions. This rule change will enable unions to use it to entrap companies and force neutrality agreements.

Another aspect of this rule change affects the Sarbanes-Oxley Act 2002. Under Sarbanes-Oxley, publicly traded companies must report on their 10K filings to the SEC any potential criminal liabilities. Essentially, this forces non-union companies to report potential criminal claims based on unfounded allegations.”

Workers Victimized by Coercive Card Check Campaigns Ask NLRB To Protect Secret Ballot

November 1st, 2010, National Right to Work Foundation

“National Right to Work Foundation staff attorneys filed briefs today with the National Labor Relations Board (NLRB), urging the federal labor board to uphold a landmark 2007 decision which gave new protections to workers swept into union ranks through the abusive card check organizing process.

In Dana Corporation, Foundation attorneys won new employee rights intended to counteract the employee intimidation and harassment waged by aggressive union operatives that frequently occurs during card check organizing campaigns.

The Dana decision granted employees the ability to file a decertification petition for a secret ballot election to toss out union officials from their workplace within 45 days after an employer gives notice that it recognized a union as monopoly bargaining agent by card check. At the request of union lawyers seeking to deny workers access to a secret ballot vote, the NLRB ruled in August to revisit Dana…

Interest Due on Back-Pay Compounded Daily

National Labor Relations Board, October 25, 2010

“In a pair of decisions made public today, the National Labor Relations Board adopted two new remedial policies: adding daily compound interest to backpay and other monetary awards and requiring many employers and unions to notify workers electronically of NLRB orders in unfair labor practice cases.  The Board’s stated goal was making Board remedies more effective and in line with current legal and workplace practices.

Going forward, interest on backpay and all other monetary awards will be compounded daily, following the evolving practice of other legal regimes including the Internal Revenue Code. The decision in Kentucky River Medical Center, 356 NLRB No. 8, was unanimous. ‘Our primary focus must be on making employees whole,’ the Board noted in its decision in Kentucky River. ‘After careful consideration, and based on the Board’s experience in the decades following the initial decision to order interest on backpay awards, we have concluded that compound interest better effectuates the remedial policies of the Act than does the Board’s traditional practice of ordering only simple interest and that, for the same reasons, interest should be compounded on a daily basis, rather than annually or quarterly.'”

EFCA-“Lite”? – NLRB Board Foreshadows EFCA-Like Election Period

Barnes & Thornburg, LLP, October 2010

“The new makeup of the National Labor Relations Board (NLRB) combined with recent comments by one of its members indicate a potential major shift in union election procedures – a shift that would undoubtedly favor unions. Under current NLRB procedures, an employee secret-ballot election is generally scheduled within 42 days after a representation petition has been filed by a union with the NLRB. The intervening days between the petition filing and the election offer the employer its opportunity to communicate to employees its corporate view and why it feels remaining union-free is in the best interest of the company. Importantly, unions usually inundate employees with pro-labor propaganda for many weeks and even months prior to the filing of the petition, often leaving employers a “step behind” once a petition is actually filed. Thus, having several weeks between the filing of a petition and a resulting union election is crucial to a company’s chance for success. On Thursday, Oct. 21, 2010, newly appointed NLRB member Mark Pearce made comments indicating that he supports shortening election periods for unions, thus calling into question whether the current system will remain in place.

Pearce’s comments echo those of the controversial Becker, who has advocated using the NLRB’s “rulemaking” authority to circumvent Congress and implement aspects of EFCA. This would be a significant change from the traditional practice of the NLRB of creating legal guidelines through case precedent, similar to the U.S. court system. If the labor-friendly NLRB adopts Becker’s philosophy, it could promulgate rules that achieve EFCA’s goals and more, including:

  • Shortened union elections;Electronic posting (in addition to physical posting) of unfair labor practice violations;
  • Earlier union access to employees’ personal contact information, exposing employees to more union propaganda;
  • Restrictions on an employer’s ability to communicate information regarding the negative aspects of unionization to employees;
  • The use of an appointed mediator to settle “first contracts”; and
  • Increased access for union organizers to an employer’s place of business and employer-maintained electronic technology.”

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