As if employers and their HR personnel do not have enough to deal with, all must be mindful of the protections and prohibitions found under the National Labor Relations Act (NLRA) when addressing the many employment-related issues brought on by the coronavirus. Whether you have a union or not, the NLRA can be implicated when making difficult employment decisions in order to ride out the virus wave.
If you do not have a union
The NLRA protects employees who engage in “concerted activity” for purposes of improving or changing working conditions. If an employer disciplines an employee for having engaged in concerted activity, the employer will have violated the anti-retaliation provisions of the NLRA and subject to an unfair labor practice charge. This is so regardless of whether the employees are members of a union or not. Concerted activity occurs when two or more employees act together with respect to any matter that is related to the terms and conditions of their employment.
In the COVID-19 context, most, if not all, employee concerns will be prompted by safety issues in the workplace. For instance, employees may mutually decide to wear or insist on wearing masks to work – even though such apparel has not been previously allowed by the employer. Since the request would be viewed as a safety issue – and thus effecting a term and condition of employment – employers should be cautious in disciplining those employees. Additionally, some employers require employees to wear personal safety gear (hard hats, goggles, gloves, smocks, etc.) while performing their jobs. As a cost-saving measure, many employers require employees working different shifts to share the gear. However, employees collectively may object to doing so now in light of the virus pandemic and request their own gear – refusing to share. Similarly, employees may insist on more frequent sanitizing of workstations by the employer. All such requests should be considered and addressed in light of the protections and prohibitions of the NLRA.
If you have a union
If some or all of your employees are represented by a union, the employer is subject to a collective bargaining agreement. As a general matter, the collective bargaining agreement requires an employer to bargain over some changes in terms and conditions of employment before those changes are made – some topics are subject to mandatory bargaining while others may be a permissive subject of bargaining. Even if permissive, and not mandatory, an employer may be required to bargain with the union over the effects of any proposed changes. In other words, where an employer is under a collective bargaining agreement, there are few instances where an employer should feel comfortable making unilateral changes in the terms and conditions of employment for those employees covered by the collective bargaining agreement.
However, some collective bargain agreements contain language which may permit easing or slacking of some bargaining obligations of the employer in the event of national or other emergencies over which the employer had no control – which the COVID-19 pandemic could possibly be viewed. Similarly, some collective bargaining agreements may contain a force majeure clause which would excuse a party from its contractual obligations due to extraordinary and uncontrollable circumstances or events. Such language or clauses would work both ways, however. For instance, citing a force majeure clause, union members may decide not to show up for work due to realistic safety concerns – although the collective bargaining agreement contained a prohibition against work stoppage or strikes.
After all is said and done, it would be prudent of an employer subject to a collective bargaining agreement to sit down with the union representatives and “negotiate” the changes the employer believes are necessary. Once the union is on board, the employer can be assured of not being impeded when implanting those changes. Otherwise, the employer may find itself spending more time dealing with charges filed with the National Labor Relations Board than tending to the efforts of keeping its business operational.
» TIMOTHY W. LINDSAY has practiced exclusively in the area of labor and employment law since 1987 and has extensive experience in defending public and private employers against claims involving a wide variety of state and federal labor and employment laws.
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