Recent actions by the National Labor Relations Board (NLRB) and Department of Labor (DOL) may have significant implications for employers.
First, the NLRB issued a decision in Cemex Construction Materials Pacific last week that revived certain elements of a long-dormant legal doctrine allowing unions to represent employees without a formal vote. In the past, when a union made a recognition demand, the employer could decline and the union had to petition the NLRB for an election. Now, when a union asks an employer for recognition based on a majority show of support from employees, the burden is on the employer to either recognize the new union or promptly petition for an NLRB-run election. Further, if the employer petitions for an election and then violates labor law in a way that would require setting aside the election, the NLRB will order the employer simply to recognize and bargain with the union without a formal vote.
In another move to make it easier and faster for unions to organize an employer’s workplace, the NLRB on August 24 issued new rules that will speed up the election process. Included are rules that shorten the period between when the NLRB directs an election and when the election will be scheduled, expedites the scheduling of pre-election hearings and limits what pre-election challenges can be raised. The new rules will take effect on December 26, 2023.
With unionization efforts already on a recent rise, employers should train their managers and supervisors to recognize and respond appropriately to union organizing efforts, be prepared to respond to a union’s request for recognition and to mitigate the risk of unfair labor practices prior to a representation election.
Second, the DOL proposed yesterday a significant increase to the salary threshold required for most white-collar exemptions from the overtime requirements of the Fair Labor Standards Act (FLSA). If the DOL increases the salary threshold from $684 to $1,059 per week, as proposed, most employees would need to earn at least $55,068 annually to be exempt from overtime pay. The upcoming election year is likely to motivate the DOL to push this proposal through the notice and comment period expeditiously, with an eye toward a 2024 effective date. As was the case in 2016, the new rule will almost certainly face legal challenges. Nevertheless, employers should consider reviewing their FLSA classifications and payroll records to identify any changes that would be required if this new salary threshold goes into effect.
If you have questions about preparing for these proposed FLSA changes or potential unionization efforts within your workforce, please contact a member of Warner’s Labor and Employment Practice Group or your Warner attorney.