This transcript has been auto generated
00;00;00;00 - 00;00;24;21
Tom Godar
Welcome once again to the Labor Law Insider podcast. This is your host, Tom Godar. I've been practicing law in the labor area north of 40 years. I find it hard for me to admit that, but all of this began back in May of 2021, when it was the premise of my colleagues and I at Husch Blackwell, that elections have consequences.
00;00;24;23 - 00;00;49;14
Tom Godar
In the meantime, in those past three and a half, four years, the Husch Blackwell family of labor lawyers has doubled. We've got incredible insider experience throughout our offices, from coast to coast, and we've invited others from outside of Husch Blackwell to join us on occasion as well. And so we are really excited to continue our Labor Law Insider podcast.
00;00;49;17 - 00;01;10;16
Tom Godar
And we promised you that it was a wild ride back in 2021. Well, folks, I just got off another call, read some more information on the internet, looked at a few more articles, and I promise you that we're in for another wild ride in the world of labor law. So buckle up and join us for the Labor Law Insider podcast.
00;01;10;18 - 00;01;43;24
Tom Godar
It's so great to have you back. For this part two of a really interesting discussion with the Labor Law Insider. We had fun for three and a half years talking about the changes under the Biden administration, and now we're looking to the changes that we are already beginning to see and more to come for sure. Under the Trump administration, a more pro management decision making group is going to be included with the new general counsel, which year he has appointed a new board members where they are appointed and to help me with this discussion.
00;01;44;01 - 00;02;16;17
Tom Godar
We have labor law insiders Rufino Gaytan and Tracy Wolf. I hope that you were able to listen to part one, but part two are going to pick up with the questions about what might we see going on? Not just in the world of labor law, but how the broader world of employment law might impact labor law itself. Part of the larger picture, too, is some of the probably fascinates you, Tracy, because you're a litigator, you get involved in a much broader world than just labor law, but you excel there, too.
00;02;16;20 - 00;02;36;04
Tom Godar
But EEOC law and wage and hour law and all this great litigation stuff that you and I have enjoyed over the years. This is going to be coordinated with other agencies. Any thoughts about how this boards appointments and board outcomes might also be reflected in EEOC law or appointments, that sort of thing.
00;02;36;11 - 00;02;57;00
Tracy Wolf
Absolutely. You know, that's one of the things I spend a lot of my time in the employment realm, and I handle a lot of litigation. I regularly work with administrative agencies, and I've watched what's happened recently at the EEOC a little bit different from what's going on at the NLRB. But still, I think some guidance potentially we've had firing.
00;02;57;00 - 00;03;25;01
Tracy Wolf
We've had at two, actually, and we've had I think it was just last week the EEOC had been pursuing the Harmony hospitality suit and Alabama regarding sexual orientation at the case involves a non by Mary Male. And they had taken it on as their legal department to pursue suit. And they dismissed that. They're backing away from it. And I'm wondering if that's kind of a glance into what we're going to see from the NLRB.
00;03;25;01 - 00;03;55;18
Tracy Wolf
And strikingly on that to a big issue for I know a lot of our clients and Rufino was referring to earlier Kaitlyn's memorandum, what's going to happen with non-compete? I remember this time last year going out and talking about the FTC's involvement and how that could potentially change how employers, particularly in venues such as my state Texas, where non-compete are generally considered enforceable, how companies go about governing and managing trade secrets, keeping employees.
00;03;55;18 - 00;04;19;06
Tracy Wolf
These are huge things. And just another thing that I noticed, and particularly in Cowan's memorandum, and I know we've talked about the Dartmouth basketball players, are student athletes going to be able to organize? It seems like those memoranda were also withdrawn by Cowan. Appears as prior memorandums, sir. I guess they're they're overridden and how is that going to pan out going forward?
00;04;19;08 - 00;04;37;28
Tracy Wolf
Lots. I mean, so many moving parts. You look in one direction, something's happening, and then you look over here and what how did that happen to. And that's what makes it interesting. It's a fine time to be a labor and employment attorney because you're not going to be bored. You're always going to be on the move. You're always going to be reading.
00;04;37;28 - 00;04;53;14
Tracy Wolf
And what's kind of interesting, I feel like we're getting a lot of attention right now because so many of the aspects to the beginning of this administration, they directly affect our clients and they directly affect our practice area. It is an interesting time to be in this field.
00;04;53;20 - 00;04;59;14
Tom Godar
Well, you know, Professor Wolf, though you might have to rewrite some of your courses here.
00;04;59;17 - 00;05;02;12
Tracy Wolf
It's just it's just a whole new world.
00;05;02;14 - 00;05;26;28
Tom Godar
Yeah. The changes that we're seeing are pretty interesting. You talked about the Dartmouth basketball case. We just talked about that in our last podcast. But the union withdrew its petition for recognition even after they had won, recognizing that things are going to change. And so it certainly is sort of a moving target where, you know, what kinds of changes do we anticipate?
00;05;26;28 - 00;05;47;22
Tom Godar
I think we've already started to talk about some of them under the Trump administration. And this is where we all get to take out a crystal ball. Plenty has been written about this ever since, frankly, November, when Trump's administration or Trump won the election and the administrative changes were sort of speculated about. But what might we see over the next 3 to 6, 9, 12 months?
00;05;47;25 - 00;05;49;13
Tom Godar
Now let's just take first crack at that, Rufino.
00;05;49;13 - 00;06;29;06
Rufino Gaytán
Yeah, so I think a lot of this is certainly going to depend on what the president chooses to do with regard to the board and the quorum issue. Even before that, though, there is, I think, a lot of reflection and probably very strategic thinking going on already, just given some of the labor issues going on. So our colleague Adam Doerr did a very short analysis on the number of filings for unfair labor practice charges and representation petitions from the time that the president fired Jennifer Abruzzo and Gwen Wilcox.
00;06;29;08 - 00;06;53;11
Rufino Gaytán
And it's only a very small sample size. It's only a couple of weeks or so, but unfair labor practice charges were down about 20%, and our representation cases were down about 18% for the same time period a year ago. And so I think that unions and employees are being a lot more careful with what sorts of cases they're going to bring to the board, right?
00;06;53;14 - 00;07;19;00
Rufino Gaytán
So that's impact number one. But longer term, if we ever do get a quorum at the board, I think some of the changes there would be kind of, I guess the low hanging fruit, if the administration is looking to support employers, would be to probably overturn the voluntary recognition process that was cemented in. I did not mean to use that.
00;07;19;03 - 00;07;20;06
Tom Godar
Brilliant.
00;07;20;09 - 00;08;04;04
Rufino Gaytán
In the Cemex case. But, you know, this idea, the idea that a union can obtain representation certification simply because an employer commits an unfair labor practice is really, you know, it is a game changer, especially when you combine it with other authority, like the Stericycle case, which also is a Biden era decision where the board took a very expansive approach to section seven rights and how an employer policy contained in the handbook can trigger an unfair labor practice, even if the employer is not enforcing the policy per se.
00;08;04;06 - 00;08;33;13
Rufino Gaytán
You know, using the wrong language in a policy can create this potential unfair labor practice that if you happen to be in the middle of an election petition, you know you might face this risk of now being ordered to bargain with that union without ever having an election. It's that's a scary proposition for a lot of employers. Again, that's sort of low hanging fruit, at least from my perspective as a management representative.
00;08;33;15 - 00;08;42;19
Rufino Gaytán
If the Trump board ever gets fully constituted and it looks to, you know, cherry picked its cases, that's probably too that might have a short shelf life.
00;08;42;21 - 00;09;06;04
Tom Godar
I agree, and I think it's going to be a very interesting next few years. I think both of you anticipated that while Trump is going to be more pro management by scads than the Biden administration, there's also indications that he has, in his maybe populist way, looking for employees to have opportunities. And maybe that's expressed by the National Labor Relations Act.
00;09;06;04 - 00;09;35;13
Tom Godar
And it's, interpreter's the board. So look forward to seeing some of that. We'll certainly keep you up to date on some of these changes. But right now, today, without knowing what the fulfillment of this administration will be, how can employers make I've always thought this was the key make unions irrelevant. So that there isn't a need for employees, or to go seek unions to help them gain some sort of, a balance and traction in the workforce.
00;09;35;13 - 00;09;42;08
Tom Godar
Strategist chart with you. What kind of things can employers be doing right now to help achieve that kind of goal?
00;09;42;11 - 00;10;11;20
Rufino Gaytán
Yeah. So, you know, if my memory serves and my memory is not as good as it used to be in one of our first podcasts we did together, I always talk about this issue of proactivity by our clients and employers in general. And my belief, my strong belief is that when an employer engages with its employees, the need for union representation really goes by the wayside.
00;10;11;23 - 00;10;40;25
Rufino Gaytán
And that doesn't mean indulging your employees every concern or giving them what they're asking for at every turn. But it really does mean if you're getting feedback from your employees where they have a concern about some workplace issue, don't ignore the complaint. Engage with that employee or group of employees. Sit down with them through your management and supervising teams and get additional information.
00;10;40;28 - 00;11;02;01
Rufino Gaytán
Ultimately, you might determine, look, we can't do what you're asking us to do, employee, because this is why we do things the way we're doing them. And, you know, even when the employee is not getting what they're asking for, the fact that they engage in a process with you as their employer that shows them, hey, I was listened to.
00;11;02;04 - 00;11;33;28
Rufino Gaytán
I actually had constructive conversations with my management team about this, and now I have an explanation for why we cannot do the things that I want or make a change that I think is necessary. That process really give us employees a seat at the table. And that is one of the key selling points that unions use in organizing is you need a seat at the table by bringing your collective power as employees together and using us as your representatives, we will guarantee you a seat at the table.
00;11;34;00 - 00;11;46;19
Rufino Gaytán
Well, if you've already given them a seat at the table because you're engaging with them, that really big selling points from unions is going to ring hollow. When an employee hears that from a union business agent.
00;11;46;21 - 00;12;09;08
Tom Godar
That's kind of huge, given that we know the real opinion towards unions is at a high watermark. Over the last 40 years, it said something like 75% of the police and pols conduct it by, you know, reputable pollsters saying that there's a favorable opinion of unions. And by the way, Trump era Biden era doesn't make any difference. Those things are real.
00;12;09;08 - 00;12;30;02
Tom Godar
And show that the real opportunity for unions to engage in organizing isn't going to disappear merely because it might be not quite as friendly a time schedule to move forward. Hey, Tracy, as you're well, you talked about it earlier. A client calls and said, what do I do about handbooks in this changing environment to just say, well, ignore all that Biden stuff because it's all going away?
00;12;30;02 - 00;12;33;03
Tom Godar
Or, how are you handling that call today.
00;12;33;05 - 00;12;55;23
Tracy Wolf
That that is a huge risk. I mean, I think Rufino mentioned a little earlier. I mean, do you just ignore the law? No, absolutely do not until we have some certainty. It's, it's important to, always be in compliance with the law as best as you can. And if there's ever doubt, it's probably a very good idea to consult with counsel.
00;12;55;26 - 00;13;24;16
Tracy Wolf
And, you know that oftentimes we can get input and invites from those within positions who do have some know how when there are conflicting laws, it's important to be able to reconcile those in such a way that we anticipate would be supported by the new board, whatever that might be comprised of. So I think it's very important now, probably more so than ever, to seek the advice, get input.
00;13;24;16 - 00;13;53;23
Tracy Wolf
Each issue is going to be unique. Don't you don't have to head off on your own and just guess. And I know guessing makes everyone anxious. I think that, it is going to be high time to revise employee handbooks, but maybe not this week, probably within the weeks to come, where we figure out exactly where we're going so that we can make the proper recommendations and to ensure that, our clients, businesses and operations maintain in compliance with law.
00;13;53;25 - 00;14;18;18
Tom Godar
You might have heard a chuckle, because that's exactly the advice I gave last week. I said, sure, let's let's work on some policy review, but let's take it another month. Then we'll jump in because we'll know a little bit better. But thanks so much, folks, for offering us both a historic perspective as well as a bit of a crystal ball to what, we and our clients and our friends will see over the next well 90 days, 120 days.
00;14;18;18 - 00;14;36;01
Tom Godar
And, for years. It's been great to chat with you about this. I sure will revisit this regularly as some of the, reveal takes place, but, Tracy, Rufino, thanks so much for joining the Labor Law Insider and being, prognosticators the future.
Rufino Gaytan
Thanks, Tom.
00;14;36;04 - 00;14;39;04
Tracy Wolf
Thank you so much for having me, Tom. It's been a great pleasure.
00;14;39;11 - 00;14;46;03
Tom Godar
All righty. Take care. And thanks for joining us on the Labor Law Insider.