SimplyHR | Employment & Labor Blog 

On November 5, 2021, OSHA released a previously announced Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to enact a policy requiring employees to be vaccinated against COVID‑19 or submit to weekly testing. Employers are required to have a policy in place by December 5, 2021, with enforcement of the ETS to begin on January 4, 2022.

President Biden is committed to promoting labor organizing in an effort to strengthen union organizing after years of declining membership. In 2020, 10.8 percent of employees, including governmental employees, belonged to a union. In the 1950s, the total union membership exceeded 30 percent, including governmental employees. In 2020, the union membership in the private sector was 6.3 percent, whereas in 1983, the unions represented 23 percent of the employees in the private sector.

On December 16, 2020, the EEOC issued an update that addresses the availability of COVID-19 vaccinations and questions they may raise under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and the Genetic Information Nondiscrimination Act (GINA). If an employer elects to administer a COVID-19 vaccine or contract with a third party to do so, the employer must meet certain requirements under federal anti-discrimination laws.

The U.S. Supreme Court issued its opinion June 27 in Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. ___ (2018), holding that nonunion members working in union positions for public employers are not obligated to pay agency fees, also known as “fair share” fees. This overturns Abood v. Detroit Board of Education, 431 U.S. 209 (1977) which set the precedent that as long as the agency fees represent the percentage of the union’s expenditures for collective bargaining, contract administration, and grievance adjustment purposes, then state governments can legislate that public employees employed in positions represented by unions, even though not union members, can be required to pay service charges or agency fees. In conjunction, unions are required to provide detailed notices of how the agency fees are being spent for “chargeable” activities (contract and bargaining based activities) and “non-chargeable” activities (political and lobbying activities). It should be noted that federal law prohibits unions that bargain for federal workers to charge agency fees to nonunion members, but according to the U.S. Department of Labor’s Bureau of Labor Statistics, about 27 percent of the federal workforce are union members.

The Missouri legislature has approved a proposal that moves the date of a public vote on the state’s right-to-work law to the August 2018 ballot.

The proposal was approved 96-47 in the Missouri House on May 17. The Senate had already passed the measure. The legislative approval moves a statewide vote on whether to prevent the Missouri right-to-work law from taking effect from November to the Aug. 7 primary ballot. 

On May 8, 2018, a Missouri Senate committee approved a proposal to have voters decide in August 2018, rather than November 2018, whether to prevent the Missouri right-to-work law from taking effect. If allowed to become effective, the right-to-work law would prohibit employers from requiring employees to join a union or pay union dues as a condition of employment.

Update: This post has been updated to correct a reference to the National Right to Work Legal Defense Foundation’s appeal. The Missouri workers represented by the National Right to Work Legal Defense Foundation are suing not to prevent a public vote but to ensure that the summary of the proposition that appears on the ballot in 2018 does not confuse or mislead voters.

Missouri Gov. Eric Greitens earlier this year signed into law a bill that prohibits requiring employees to join a union or pay union fees. The law was set to become effective Aug. 28, 2017. However, while the governor signed the bill, Missouri allows for a party to petition for a referendum to put the issue before voters. Mike Louis, President of the Missouri AFL-CIO, submitted a request to the Missouri Secretary of State for a referendum whereby the issue would be submitted to the voters for their approval or rejection.

On February 5, 2014, the National Labor Relations Board announced proposed amendments to its regulations, which would make it easier for unions to organize employees. The proposed amendments would permit unions to hold workplace elections more quickly after filing an election petition. The majority of elections now take place 45 to 60 days after the union obtains necessary signatures to file a petition. It is estimated that the proposed amendments would shorten the time period by days or even weeks.

In announcing wage settlements with private employers, the DOL routinely states that it wants employees to get “every penny they earn." However, realistically the stakes of a wage and hour investigation by the DOL or a wage and hour class action by a current or former employee are much higher than paying each employee down to the penny. You might ask yourself, “Is it better or worse to draw a DOL investigation as opposed to a private class action?” The answer is that the stakes are different but high in either case—it’s truly a coin toss that you can’t win.

Clients frequently seek advice concerning tips for avoiding and/or defending against employment discrimination claims. Read this blog entry for some tips you should consider.