Key Topics

• Proposed Changes in Rules for Forming Labor Unions
• Employees’ Requests to Have Co-Worker Present During Investigatory Interviews
• Legality of Confidentiality and Anti-Fraternization Policies

As a recent Wall Street Journal article outlined, labor unions are ramping up their efforts to make an impact in the November 2008 elections. One of labor’s focal points is the “Employee Free Choice Act,” which proposes to change (a) the rules for forming unions, (b) the way first contracts between unions and employers are negotiated, and (c) how employees’ rights are enforced. With regard to formation rules, the current union certification process is conducted via a supervised election and secret ballot. If the Employee Free Choice Act becomes law, the National Labor Relations Board (“NLRB”) would be authorized to certify a union once a majority of employees have signed a union authorization card. However, this new certification procedure lacks confidentiality, increasing the potential for peer pressure, harassment, and intimidation to influence an employee’s choice.

The Employee Free Choice Act passed in the House of Representatives on March 1, 2007, but is currently stalled in the Senate, making it unlikely that the bill will pass during the current Congress. However, the bill has been introduced during each of the past three Congresses and will assuredly be introduced once again after the next President and Congress are installed in 2009.

Another labor-related employment issue that may be sensitive to the outcome of the 2008 elections concerns the right of employees to have a co-worker present during an interview or hearing that may lead to disciplinary action. While union workers are guaranteed this right, the NLRB has flip-flopped (and commentators note that these changes have coincided with changes in the political persuasion of the White House) as to whether the same right applies to non-union employees. Currently, employers are not obligated to grant a non-union employee’s request to have a co-worker present during an investigatory interview. Depending on the circumstances, however, denying such requests may not necessarily be the “best practice.”

Speaking of the NLRB and the right of employees to engage in mutual aid and protection, this is a good time to remind employers of two decisions from the U.S. Court of Appeals for the D.C. Circuit that impact non-union workplaces. The policies at issue in these cases involved confidentiality and anti-fraternization provisions in employee handbooks, respectively. In both cases, the D.C. Circuit found that the broad language used by employers had potential to chill employees’ exercise of their rights and, therefore, constituted an unfair labor practice. In light of these decisions, employers should review their confidentiality and anti-fraternization policies to ensure they are sufficiently specific and do not run afoul of the National Labor Relations Act’s protection of employees’ rights to discuss the terms and conditions of their employment.