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00;00;02;11 - 00;00;24;07
Tom Godar
Hello and welcome to the Labor Law Insider podcast. I'm your host attorney Tom Godar, and I work with Husch Blackwell and have been involved in labor law for more than four decades. I'll tell you what, there has been a wild ride over the past three and a half years of the Biden administration. He fulfilled his promise to be the most union friendly president ever.
00;00;24;17 - 00;00;50;25
Tom Godar
And as a result, between General Counsel Abruzzo and the National Labor Relations Board, there's been a sea change in the way that labor law has been interpreted and applied. So we will have guest to discuss what's new, what's challenging and what might be the ways in which our friends, our clients and others advising companies might do to accommodate these changes in the labor law world.
00;00;51;00 - 00;01;13;22
Tom Godar
It's a wild ride, so buckle up and come and join us on the Labor Law Insider podcast. Good afternoon this is Tom Godar your Labor Law Insider host on a beautiful November day, a day in which my phone has not registered a single text message urging me to give money or support one candidate or another. And it's been true for a week.
00;01;13;23 - 00;01;36;16
Tom Godar
So if for no other reason, I think the colleagues who are joining me are pretty happy about that piece. I didn't know I was such a popular guy to both sides of the aisle until about October. I'm in Wisconsin, so we had a very, very contested, hotly contested election in this purple in Wisconsin where there were votes that actually matter to be cast.
00;01;36;16 - 00;01;55;27
Tom Godar
If you're in California or New York, at least on the presidential side, it was pretty easy to say which way the states were going to swing, but not in the handful of states, including Wisconsin. And if by now you guessed that we're going to do a post-election sort of review of what this might mean in the labor law world, you are right.
00;01;55;27 - 00;02;19;14
Tom Godar
I'm really excited because, well, I kind of like politics. I'm actually an elected official in the silliest little kind of municipal position you could have. I am on a lake management district board, but I'm having the opportunity to share my thoughts about this election with two of our really terrific and popular guests on the Labor Law Insider, Mary-Ann Czak and Rufino Gaytán.
00;02;19;24 - 00;02;47;07
Tom Godar
Both folks are going to join us again today and share some thoughts about what labor law challenges and changes we might see under the Trump administration. Mary-Ann Czak, you might know, hails from Hofstra Law School in New York, lived in Long Island, but has now found the beckoning of family and weather to South Carolina. Mary-Ann, welcome. It's great to have you on the Labor Law Insider.
00;02;47;15 - 00;02;49;11
Mary-Ann Czak
Thanks, Tom. Happy to be here again.
00;02;49;28 - 00;03;10;26
Tom Godar
Rufino Gaytán, one of my friends and colleagues, joins us from Houston, Texas. And it's great to have Rufino on. He's also a UW grad like I, but he's a little bit like Mary-Ann was wise to get out of some of the northern climates. Found his way into a beautiful setting in Houston, Texas. Welcome, Rufino. Thanks for joining us.
00;03;11;05 - 00;03;13;06
Rufino Gaytán
Thanks for having me again. Happy to be here.
00;03;13;18 - 00;03;44;23
Tom Godar
Well, everybody on this Labor Law Insider podcast, the listening audience knows what happened in the first Tuesday of November. President elect Trump won the popular vote by about 8 million votes or something like that, as well as the Electoral College votes by a factor of 312 to 226. So we will not only have a new president, as we all knew what happened in the election between Vice President Harris and former President Trump.
00;03;45;03 - 00;04;16;04
Tom Godar
But also we'll have quite a different policy view given President Trump's Republican status and right leaning versus Biden and Harris's Democratic status and left leaning or union favor leaning, as we've talked about, frankly, for three and a half years of a Labor Law Insider. But what we'd really like to know is what that means. And does it make any difference that the Senate, at least as of last count, their work has also moved to the GOP side with 53 Republican senators.
00;04;16;04 - 00;04;41;25
Tom Godar
And while the House is still technically undecided, it seems everything I read tells me there will be a very slim majority for the Republicans there as well. I mention that, though, there's been virtually no legislation whether Democratic or Republican control of the presidency related to labor law for, what, eight, ten, 12 years, something like that. Almost all of it comes from the National Labor Relations Board and its general counsel.
00;04;42;13 - 00;05;06;27
Tom Godar
So let's launch in a little bit, if we can, to what it means when we are going to move back towards a Trump presidency and his ability to impact his administration's ability to impact the National Labor Relations Board and how the board and its general counsel interpret the law. First, can we expect that, as they say, elections have consequences?
00;05;07;05 - 00;05;08;22
Tom Godar
Very. We're going to see some changes?
00;05;09;03 - 00;05;46;14
Mary-Ann Czak
Yeah, definitely. I mean, I think there's a few categories of potential changes. Some will happen more immediate than others. I think we can all agree that the most immediate change is going to be the change in general. Counsel, when Trump takes office and it could happen as quickly as on Inauguration Day, you know, historically when there was a change in administration, typically the current general counsel would be permitted to finish the remainder of their term before there was a new general counsel appointed by the president who was then in office.
00;05;46;21 - 00;06;12;29
Mary-Ann Czak
However, as we all will remember, in an unprecedented move, Biden, when he took office, immediately removed the Trump appointed GC Peter Robb at the time and appointed current general counsel Jennifer Abruzzo. You know, I'm sure all of our listeners know, but just a refresher as to what the general counsel does. You know, they're the prosecutorial authority and they drive the cases to prosecute for the board.
00;06;13;02 - 00;06;46;28
Mary-Ann Czak
So they really set policy and it set the tone for the National Labor Relations Board and General Counsel. Abruzzo currently has taken a very aggressive stance in implementing a pro-labor and a pro-worker agenda. So we are almost certain that President elect Trump will treat. GC Abruzzo you know, the same way and as soon as he takes office, we expect that he is going to fire Abruzzo almost immediately and then appoint a new Republican general counsel.
00;06;46;28 - 00;06;49;28
Mary-Ann Czak
So I think that's the first change that will be occurring.
00;06;50;08 - 00;07;08;19
Tom Godar
Well, when Trump came into the presidency in 2016, he was the outsider who was going to drain the swamp. He is now an insider, given his four years in the White House. So I don't think you're guessing at all roaring that there will be a much quicker move to appoint the various individuals who will fill out his administration.
00;07;08;27 - 00;07;15;05
Tom Godar
Remind me, by the way, Mary-Ann or Rufino, does the general counsel have to be approved the appointment by the Senate?
00;07;15;11 - 00;07;15;27
Mary-Ann Czak
No.
00;07;16;19 - 00;07;19;19
Tom Godar
So that suggests by the flick of a pen, isn't it?
00;07;19;23 - 00;07;23;18
Mary-Ann Czak
Yes. I think it will happen Inauguration Day, frankly.
00;07;23;26 - 00;07;26;03
Tom Godar
I wouldn't be surprised. What do you think, Rufino?
00;07;26;18 - 00;08;05;25
Rufino Gaytán
I think it's certainly a possibility and one that has a high likelihood of happening, just like Mary-Ann said. You know, I think there's been some talk as well in terms of given the amount of support that President elect Trump received from blue collar workers and including unionized workers, as we saw just from the lack of endorsements from some unions, which was fairly atypical for them this election cycle, you know, there's been a question about how likely he is to be as anti-labor or, you know, more employer friendly given that level of support.
00;08;06;05 - 00;08;34;18
Rufino Gaytán
But at the end of the day, the general counsel is somebody who sets policy for the board, and they really take the initiative on moving labor policy based on the administration's priorities. So I can't imagine that President elect Trump will want to keep. Jennifer Abruzzo So I do think that it's a very likely possibility. And like Mary-Ann said, if it does happen, I do anticipate that it will happen fairly quickly within the new administration.
00;08;35;02 - 00;09;04;28
Tom Godar
You know, it's interesting that you talk about union households support in this election. The exit polls I've read that were pretty interesting on that statistic are calling on ten key states for information said that vice President Harris received 54% of the vote from union households, whereas President elect Trump got 44%. Yet there was an exit poll conducted by CNN in Ohio, one of those swing states, and the exact opposite was reported.
00;09;04;28 - 00;09;31;23
Tom Godar
That is 54% of those in union households supported Trump, according to this exit poll, and only 44% for Harris. So I find it fascinating that at least President Trump, whether or not this speaks broadly for the Republican Party, has either maintained about the same percentage on a broad basis, but at least in some important states like Ohio enjoys some fairly significant positives from the union households.
00;09;32;05 - 00;09;55;25
Tom Godar
I wonder if that's when the Republican convention that President Trump invited Sean O'Brien to address the convention as the head of the Teamsters. Who knows what impact that had? But you're right, it's not completely clear that the Republicans don't have some significant support from union households and will have to, I suppose, take that into account if they're going to make changes in policy.
00;09;56;20 - 00;10;27;26
Tom Godar
There's other appointments, obviously, besides the general counsel and chief among them is the current chair of the National Labor Relations Board, Warren Mcferran. Do we know whether or not President Trump is going to be able to change the set up of the National Labor Relations Board members so that there's a majority of that he appoints? Because right now I think it's the majority is a 3 to 1 with one unfilled seat of those that were appointed by President Biden that are sort of union leading.
00;10;28;03 - 00;10;29;08
Tom Godar
What's going to happen with that?
00;10;29;13 - 00;10;57;18
Mary-Ann Czak
Yeah. So, you know, the board composition is also something that will very likely change, but it may not be as swift as the general counsel appointment. You know, generally for our listeners, the board is comprised of two Democrats, two Republicans and a board chair. And the board chair reflects the political party of the president at the time. But depending on how the terms expire, each board member has a five year term.
00;10;57;27 - 00;11;29;28
Mary-Ann Czak
The board's composition may not immediately reflect the current administration, meaning the majority may not reflect if it's a majority Democrat that is a Republican president or vice versa. So actually, board chair McFerran Lauren McFerran, her term expires in early or mid-December, coming up December 20, 24, and she was renominated for a third term. Tom, as you mentioned, there's also a vacancy currently for a Republican seat and there is a Republican nominee hanging out there as well.
00;11;30;00 - 00;11;58;14
Mary-Ann Czak
I believe he's a state forest management side attorney, Joseph Middelburg, and he's nominated to fill a vacant Republican seat. So these nominations are hanging out there and there are waiting to be confirmed by the Senate. But, you know, there's only a, what, a month and a half about till inauguration day? Is the Senate going to act quickly enough with you know, I'm sure there's other items on their agenda to effectuate these nominations before Trump takes office.
00;11;58;27 - 00;12;27;02
Mary-Ann Czak
I don't know. To me, it doesn't seem likely that they're going to act that quickly. If they do, though, if McFerran is confirmed for a third term, the board will actually maintain a Democratic majority until I believe it's August of 2026. One Prodi's term expires. And if that's the case, you know, a lot of our precedent setting decisions that Biden issued, you know, we could expect to remain as is at least for for that period of time.
00;12;27;18 - 00;12;39;26
Mary-Ann Czak
However, if the seats remain vacant and the Senate doesn't get their act together before that, you know, we could expect then Trump to fill those seats. So I think it remains to be seen, but that's how we kind of see it landing one way or the other.
00;12;40;10 - 00;13;27;21
Tom Godar
That's terrific. Yeah, a very thoughtful analysis. We'll watch the Senate action over the next couple of months to see if they're going to take an action to confirm the appointment of the current and then continuing chairman, make sure one of the things we keep alluding to are the changes that would take place. I mean, just as it last week that we had really another very significant board decision that was overruling Tri-Cast, I think it was the Siren Retail Corporation decision which basically amplified hugely the possibility that elections would be conducted very differently because what has been sort of the regular stuff that employers share with employees who are considering a union election about the
00;13;27;21 - 00;13;59;13
Tom Godar
impact of unionization, which has been found for 40 years to be fine. That is, if you unionize, there's the possibility of strikes and if you're unionized, there's the likelihood of paying dues and on and on go to the list that that kind of prediction of what would happen if you unionize might be found to be unlawful and I'm sure labor practice I guess first of all, I know each of you have taken a look at that case is that cases sort of a change case as I've just made it out to be.
00;13;59;13 - 00;14;02;16
Tom Godar
Is that a big deal? I'll give you a first shot at that one Rufino.
00;14;03;03 - 00;14;45;26
Rufino Gaytán
Short answer. Yes, it is definitely a change case under the Tri-Cast standard, the default position of the board and the losing employer statements was that most of these sort of predictive statements about the impact that a union will have on employees and the workforce in general were deemed to be, quote unquote, categorically lawful. So it was the burden of the employee challenging the statements or the union to prove that for whatever reason, the statements made by the employer should be considered unlawful under the new approach that the board is taking.
00;14;46;05 - 00;15;14;03
Rufino Gaytán
That is no longer the case now. The predictions of negative impacts or whatever ill effects the employer wants to assign to the process of unionization, they have to be based on an objective fact. So the employer can't just say without any sort of, you know, really evidence. Well, you are you know, it's possible that your benefits might change or they might get worse.
00;15;14;25 - 00;15;38;28
Rufino Gaytán
The employer can't just make that sort of opinion or predictive statement unless they have some sort of objective fact that gives them a reasonable belief to make that statement. And so it is kind of flipping the standard or the burden on its head and forcing the employer to think very critically about what statements they want to make in these scenarios.
00;15;39;07 - 00;16;02;24
Rufino Gaytán
And then if they make those statements, they're going to have to really be prepared to establish what basis they had for making the statement in the first place. Whereas before or currently the standard was that sort of statement was just deemed lawful unless there was some sort of a coercive effect or, you know, a threat or something that somehow rendered the statement itself unlawful.
00;16;03;02 - 00;16;29;14
Tom Godar
Thanks, Rufino. I mean, I did look at that standard as we all have, and it goes beyond the objective fact standard. I think the cases that the employers believe has to be, quote, demonstrably probable consequences beyond its control. I'm not sure what that means. But if the employer controls in some important way, what the benefits are, can they say the benefits might go up or down or stay?
00;16;29;14 - 00;16;48;06
Tom Godar
The typical statement that you might make in an election campaign, it's troubling. And and I guess, Mary-Ann is that the kind of case that might be subject to reinterpretation, review, reversal, if you will, either by general counsel or a Trump appointed majority in the National Labor Relations Board?
00;16;48;24 - 00;17;10;14
Mary-Ann Czak
I think this is certainly one of the cases that, you know, when there is a Republican majority on the board that's able to shift the changing tide of the Biden administration, I think this is one that we could reasonably suspect that a Trump board would look at, you know, try to cast has been precedent for many, many years.
00;17;10;14 - 00;17;44;24
Mary-Ann Czak
I think all of us have been practicing for a while under the Tri-Cast precedent of what we advise clients what they can and cannot say during union organizing, how they can and cannot communicate with employees. And I think this decision really could potentially hamstring an employer in their free speech rights. So certainly, I think this is something a Trump board that is generally, you know, pro employer, pro-business, pro management would look at again, you know, this is on this case is on a prospective basis.
00;17;44;24 - 00;18;12;18
Mary-Ann Czak
So I believe they determined Starbucks itself. The employer did not violate the law at the time, but this is moving forward. So obviously this only came out a few days ago. We have yet to see how this will be interpreted, but for us Labor practitioners, yeah, it's a real shift in the paradigm and how we're going to advise clients moving forward, but I think this could definitely be ripe for a relook when we have a Republican majority.
00;18;13;00 - 00;18;34;24
Tom Godar
Tri-Cast and I started practicing about this same time, actually, I might beat it by a couple of years. I think it's got a 40 years of precedent. And again, changing that, to me it seems like a very significant change. And that's the kind of thing and of course, we're predicting we can guarantee, but that's the kind of change that might be reined in by a Trump appointed board.
00;18;35;04 - 00;18;54;16
Tom Godar
But, Mary-Ann, as long as you you're finishing with this. Give us a couple of other areas from changes that have been wrought under the Biden administration's board that may be subject to review, maybe overturning or going in a different direction beyond the Siren decision that overruled Tri-Cast or other kinds of decisions might the board look at?
00;18;54;23 - 00;19;25;04
Mary-Ann Czak
Sure. I think least going back to the immediate impact of a new general counsel. You know, General for Abruzzo has issued many, many GC memos over her term and some of those initiatives, so forth, and those GC memos have come to fruition in terms of board decisions and case law and have that precedential setting basis. But there are some other GC memos that are still out there that, you know, she has not found the perfect case to present before the board to change the legal precedent.
00;19;25;16 - 00;20;02;11
Mary-Ann Czak
So I would say first, you know, consider a few of those GC memos that are still out there that I'm sure a steward as a Trump appointed general counsel gets into office. They're going to rescind immediately. So a few that come to mind off the top of my head, there is that GC memo regarding consequential damages and directing the regional offices to seek, you know, daycare costs, job search costs, late fees on credit card payments or utility payments, really stuff that was novel and went beyond the make hole remedy that we were all used to in our practice.
00;20;02;21 - 00;20;38;24
Mary-Ann Czak
So I'm sure that memo was going to be rescinded as soon as a new GC gets into office. We just had a recent one a few weeks ago, probably two weeks ago now, the stay or pay provisions and the GCS policy as to non-compete generally, where Abruzzo took issue with employment agreements that have what they call stay or play, where if you don't remain in employment or if you separate within a certain time frame, you have to reimburse the employer, let's say training cost or educational repayment costs, quit fees, sign on bonuses, etc..
00;20;39;00 - 00;21;10;23
Mary-Ann Czak
So, you know, that could be a memo or I think that would very likely be a memo that's going to be rescinded immediately because it just doesn't align with a pro workforce general counsel policy initiative, as well as the GC memo concerning, you know, captive audience meetings. That was a big thing with Abruzzo. A case hasn't come down yet saying that they're unlawful, but that was a focus of her policy, and I suspect that will no longer be a focus of a Trump board or a Trump appointed general counsel.
00;21;10;23 - 00;21;17;24
Mary-Ann Czak
So those are the memos that at least jumped out at me. I mean, obviously, there's, you know, decisions as well. If Ruffino wants to jump into that.
00;21;18;00 - 00;21;27;27
Tom Godar
Go ahead, Rufino. Yeah, give us some other examples. Again, predictive, not guarantee, but whether certain decisions or initiatives might be at risk that came from the board.
00;21;28;04 - 00;22;18;26
Rufino Gaytán
Yes. So I think one of the big ones that is sort of from my perspective, low hanging fruit is the directive from the DC to really, you know, prohibit confidentiality restrictions in severance or settlement agreements. That has been one of those issues that I've actually heard a lot of pushback from clients on, you know, who always question why they would want to pay anybody any severance or in amount of money to settle a claim if they can't by that person's confidentiality on the terms of the agreement, the substance of the underlying issues, and it's an area that was certainly sort of broke new ground when that issue was highlighted by Jennifer Brazeau.
00;22;18;26 - 00;23;01;20
Rufino Gaytán
So I think that's probably an initiative that gets rolled back again because there's just really strong support on the business side of things to eliminate that type of restriction. Another issue that I think has really kind of this idea of whether these federal agencies can sort of, you know, stay in their lane and the boards. Well, the current board's position on the use of Non-Competition agreements, I believe, is another we've seen this in another federal agency, the FTC, which attempted to, through regulation, essentially deem unlawful the use of non-competition agreements in most industries and for most employees.
00;23;02;02 - 00;23;27;28
Rufino Gaytán
That, I think, is an area that also is really prime for some pulling back, because there's just a lot of push back on that. That's an area that has traditionally been left to the states to govern and to legislate on. Most states already have laws that address non-competition issues. In California, for example, non-compete agreements are mostly unlawful with very limited exceptions.
00;23;28;04 - 00;23;53;02
Rufino Gaytán
And then you've got everything from that to states where they are lawful. And there are presumptions of their legality and illegality depending on the terms. So I think, again, that's an area where it seems to me the rallying cry around those restrictions has been, you know, the federal government is overstepping here. And this issue, the NLRB in particular, needs to stay out of these types of concerns.
00;23;53;08 - 00;24;16;13
Tom Godar
Rufino, thank you so much for walking us into this place where the National Labor Relations Board has been stepping into and some would say overstepping into places that might not even be identified traditionally with labor law issues. But honestly, state law issues like non competes and the differences between California and North Carolina, that seemed a step far for many of us.
00;24;16;27 - 00;24;40;15
Tom Godar
But let's hold on at this moment, and we're going to go to part two next time and see where some of the labor law decisions made by the board might be changed, amplified, abandoned, if you will. And let's pick up there part two, which will bring to our audience in just a week. And so if Rufino, you and Mary-Ann would join me for that part two, that would be fantastic.
00;24;40;24 - 00;24;58;27
Tom Godar
Thank you so much for joining me here at the Labor Law Insider. Mary-Ann, Rufino, and those of you who are friends of the broadcast, I look forward to talking with you in about a week or ten days.