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Highlights of Labor Law Developments So Far This Year

Here are some of the most news-worthy developments in labor law for the first months of 2019.

Local Right to Work Laws in Illinois Now Banned

Governor Pritzker on April 12, 2019, signed legislation which prohibits local governments from passing Right to Work ordinances. Right to Work laws bar employers and unions from entering into a collective bargaining agreement that requires employees to join a union as a condition of employment. This law took effect immediately.

NLRB Rules on Rights of Beck Objectors

On March 1, 2019, the NLRB ruled that a private sector union may not require non-member objectors to pay for political lobbying expenses. Such employees have been known by the name of a Supreme Court case as Beck objectors. This case involved lobbying expenses and the NLRB held that Beck objectors could not be charged because the expenses were not related to collective bargaining, contract administration, or grievance adjustments.

US Department of Labor Position on Joint Employers

The Department of Labor announced its position on joint employers, and this will make it substantially more difficult to make a case that a joint employer relationship exists. The new position is that the DOL will find joint employer liability under the Fair Labor Standards Act only when both companies hire, fire, and supervise employees, set their pay, and maintain employment records. This will make it difficult to find that most franchisors and companies that hire from temporary help services are in fact joint employers. There is a public comment period, which ends June 10, 2019, before this can be finalized.

DOL Weighs in on Independent Contractors

The US Department of Labor has issued an opinion letter (April 29, 2019) addressing the independent contractor vs. employee issue in the context of the gig economy. It involves a company that provides online and smart phone based referrals of service providers. The opinion letter will make it an easier road for gig economy companies to establish independent contractor status.

NLRB Follows Similar Path as DOL on Independent Contractor vs Employee Issue

In a case early this year, the NLRB returned to its previous independent contractor case law and reaffirmed the traditional common law test. The Board stressed the role of entrepreneurial opportunity in finding independent contractor status. The decision overrules an Obama era Board decision which severely limited the significance of entrepreneurial opportunity for economic gain as a factor.

Secondary Boycott and Union's Use of Rats and Banners

NLRB Region 13 in Chicago recently settled a charge against IBEW Local 134 alleging an unlawful secondary boycott. This is a regularly litigated issue over whether the use of inflatable rats and banners is free speech or an illegal secondary boycott. In this case, and in a number of others recently, Region 13 has sided with employers.

NLRB General Counsel's Position on Dubo Deferral

An Obama Board decision made it difficult for employers to obtain deferral of unfair labor practice charges to the contractual grievance and arbitration procedure. In a memo earlier this year, the new General Counsel returned to prior Board standards, making it substantially easier for an employer to obtain deferral, which essentially amounts to a dismissal of the ULP charge in favor of resolution through the grievance and arbitration procedure.

8(f) vs 9(a) Construction Contracts

The NLRB General Counsel has signaled that the Board is likely to take a more pro-employer stance in important construction industry 8(f) vs 9(a) contract cases. This is a confusing and complicated area of the law. But, it is exceedingly important for construction industry employers. 8(f) contracts do not require a demonstration of majority support and can be repudiated at contract termination. 9(a) contracts, on the other hand, require a demonstration of majority support, but cannot be repudiated at contract termination. They carry a continuing obligation to bargain in good faith.

If you would like further information or if you would like to discuss any of these developments, please contact Richard Wessels at [email protected] or at (630) 377-1554

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