The Union Surge of 2022
For decades, employee participation in unions has steadily declined. In Utah, unions have generally been unsuccessful in organizing work forces; there are few “union shops” in Utah. That could be changing. Starbucks’ employees throughout the country have been filing petitions to unionize, including two locations in Utah. With the increased leverage employees are commanding in a tight labor market, other companies’ employees may follow.
Employers should continue to review their compensation and benefit packages to ensure they are “market” and create policies and a work environment in which employees are free to discuss concerns without fear of retribution. A happy workforce is the best defense against unionization.
Employers should also review their employee handbooks related to policies to ensure that such policies comply with Section 7 of the National Labor Relations Act. Section 7 applies regardless of whether a workforce is unionized and prohibits employers from interfering with employee rights to engage in “concerted” or group activities for the purpose of expressing concerns about the workplace or discussing compensation and benefits, among other things. Prior to the Trump administration, the National Labor Relations Board had concluded that employer policies were unlawful whenever employees could reasonably construe such policies to limit protected activities. During the Trump administration, that rule was rejected in favor of a rule stating that policies violate Section 7 only if they implicitly or explicitly restrict employee activities, and only after consideration of an employers’ legitimate reasons for regulating workplace conduct. Under the Biden administration, the Board appears poised to return to the previous standard, which could encourage a union surge. Now is a good time to review your handbook and related policies to ensure they do not run afoul of Section 7.
Employers Forced to Confront Social Issues
Employers are increasingly forced to take stands on divisive social issues. Florida Governor Ron DeSantis’ ongoing feud with the Disney corporation regarding educational legislation is well documented. Not only are consumers and corporate investors demanding that employers publicly express opinions on heated social issues – employees are also demanding that employers make their positions clear.
Based on the leaked opinion of the United States Supreme Court indicating that Roe v. Wade – the United States Supreme Court case that guarantees access to abortion in the United States – will be overturned, several national employers have announced policies to reimburse employees who will be required to travel out of state to obtain abortions, if Roe is ultimately overturned. Utah has a trigger statute that will go into effect if Roe is reversed. The trigger statute limits legal abortions to situations of rape, incest, fetal defects or where the life of the mother is at stake if a pregnancy continues. The final opinion of the Supreme Court is expected to be released during June 2022. Employers wishing to implement a policy of reimbursement should consider potential ERISA, HIPAA and tax issues arising out of such a policy.
EEOC Warns Against “AI Discrimination”
The United States Equal Employment Opportunity Commission (EEOC) recently released guidance for employers regarding the use of artificial intelligence in making hiring decisions. Particularly, the guidance outlines steps employers should take to prevent the use of software tools leading to disability discrimination under the Americans with Disabilities Act (ADA). The EEOC technical assistance focuses on three primary concerns under the ADA:
(1) Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
(2) Without proper safeguards, workers with disabilities may be “screened out” from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation; and
(3) If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.
It is imperative for employers who use artificial intelligence in the hiring process to be aware of, and follow, the EEOC’s new guidelines when screening and selecting employees.
EEOC Reporting Deadline – May 17, 2022
Private sector employers with 100 or more employees; and federal contractors with 50 or more employees meeting certain criteria; are required to submit workforce demographics to the EEOC, including data by race/ethnicity, sex and job categories. The required report is called the EEO-1 Component 1 report. Filing the report is mandatory. The EEOC recently announced that the 2022 deadline for filing this year’s report is May 17, 2022. If you are unfamiliar with filing the report, please contact a member of Parsons Behle’s employment law department for assistance by calling (801) 532-1234 or visit www.parsonsbehle.com/capabilities/employment-and-labor.
All articles by Sean A. Monson, employment and labor practice team chairperson. To reach Sean, call (801) 532-1234 or send an email to smonson@parsonsbehle.com.
