NLRB Says COVID-19 Does Not Excuse Labor Law Violations

Monday, September 28, 2020

The COVID-19 pandemic continues to trigger uncertainty for employers throughout the nation, however, because the Nationwide Labor Relations Board reiterated on September 18, it doesn’t excuse labor regulation violations.

NLRB Common Counsel Peter Robb issued Common Counsel Memo 20-14 to summarize the kinds of COVID-related complaints that he has suggested the company to pursue since March 2020. The theme is evident: within the overwhelming majority of instances, the standard guidelines of the Nationwide Labor Relations Act apply, even throughout a pandemic.

Protected Concerted Exercise

When staff specific considerations about office security in cooperation with or on behalf of comrades, they might be engaged in protected concerted exercise beneath Part 7 of the NLRA. The Common Counsel memo referenced two issues involving such exercise, when staff spoke up concerning the employer’s response to COVID-19 and subsequently confronted opposed motion. The principles on this space are easy – if staff current considerations about phrases and circumstances of employment, together with the employer’s COVID-19 response, it’s illegal for the employer to self-discipline them due to that exercise. Additionally it is illegal to coerce or threaten staff into ceasing such conduct, or to require staff to debate their considerations one-on-one with administration slightly than as a bunch.

You will need to keep in mind that Part 7 rights apply in non-union and union environments. The absence of a union doesn’t shield an employer from potential legal responsibility beneath the NLRA or from the enforcement pursuits of the NLRB if the employer restricts protected concerted exercise.

Discriminatory Staffing Choices

The NLRA additionally protects staff from discrimination based mostly on their union actions. In two instances mentioned within the memo, the Common Counsel believed the employer might have used COVID-19-related layoffs to aim to cover anti-union animus towards explicit staff. In a single case, the employer laid off each members of a two-person bargaining unit, purportedly due to the pandemic. However different proof recommended the employer might have really been motivated by a need to remove the unit. In one other case, the employer recalled a portion of its beforehand laid off employees, however appeared to grant preferential remedy to staff who didn’t assist the union. If the allegations in both instances had been confirmed, they’d violate the Act’s anti-discrimination provisions.

Within the case of layoffs, remembers or different employment actions, the employer’s determination can’t replicate anti-union attitudes. Even when an employer could also be permitted to conduct layoffs or restricted remembers due to financial circumstances brought on by COVID-19, these selections should happen on a non-discriminatory foundation.

Collective Bargaining

As we’ve got coated in earlier weblog posts, and because the Common Counsel mentioned in an earlier memo, sure emergency conditions might droop or alter an employer’s responsibility to cut price with a union. However within the instances highlighted by the newest Common Counsel memo, authorities orders and financial stressors didn’t relieve employers of their obligation to barter adjustments with their respective unions.

In a single matter, a faculty operations employer switched to distant studying with out bargaining due to an order from the state’s governor. Whereas the Common Counsel decided that preliminary change was applicable, he additionally discovered the employer had an obligation to cut price over the choice and its results inside an affordable time after making it. The Common Counsel suggested issuance of a grievance to research whether or not the adjustments made in response to the governor’s order had been, actually, moderately associated to the COVID-19 emergency, and whether or not the adjustments brought about materials, substantial and vital adjustments to the workers’ phrases and circumstances of employment.

The memo additionally addressed adjustments brought on by financial hardship. The Common Counsel advocate pursuing allegations towards an employer for unilaterally eliminating worker medical insurance and trip depart balances due to uncertainty brought on by the pandemic. The employer was working at a month-to-month loss and misplaced about 60% of its income, however the Common Counsel nonetheless decided the employer had an obligation to cut price over the adjustments.

In one other case, the employer merely stopped bargaining over a collective bargaining settlement due to COVID-19. The Common Counsel recommended that the pandemic didn’t privilege the employer to cease bargaining, even when the classes wanted to be held by teleconference slightly than in-person. In essence, though the shape is perhaps completely different, the Common Counsel indicated the substance of an employer’s bargaining obligation remained intact.

In sum, whereas some exceptions exist to excuse an employer’s bargaining obligations in emergency conditions, the memo reminds employers that these exceptions are slender, and employers ought to put together to cut price over obligatory topics even in troublesome circumstances.

Conclusion

Common Counsel Memo 20-14 doesn’t present any groundbreaking authorized evaluation, but it surely reiterates the vital level that an employer’s obligations beneath the NLRA proceed even in laborious instances. Because the nation continues to dwell with the “new regular” of life throughout COVID-19, it’s unlikely that the pandemic will present a robust authorized protection within the context of conventional labor regulation. Employers ought to function beneath the idea that the common guidelines apply, and in the event that they suppose that COVID-19 has created a scenario which will excuse an NLRA obligation, they need to seek the advice of certified counsel earlier than leaping to that conclusion.