Right to Work Laws - Chapter 2

The Maine Joint Standing Committee on Labor, Commerce, Research and Economic Development has scheduled public hearings regarding bills which address different aspects of Right to Work.  The hearings are scheduled for Monday, May 4, 2015 at 9:30 a.m. at the Cross State Office Building, Room 208.

The primary bill being considered, LD 1353, Right to Refrain from Joining a Union, is a straightforward right-to-work bill presented by Senator Andre Cushing. This bill applies broadly to not only the public sector but to the private sector.  It defines as employers all persons, firms, associations, corporations, public employers, public school employers, public colleges, public universities, public institutions or public education agencies.  The bill would specifically prohibit a person from being required as a condition of employment to be a member of a labor organization or to pay any dues to a labor organization or a third party in lieu of payment.

Other bills being heard are LD 404, An Act to Prohibit Public Employers from Acting as Collecting Agents for Labor Unions, LD 489, An Act to Ensure the Right to Work without Payment of Dues or Fees to a Labor Union as a Condition of Employment, LD 1010, An Act to Afford Public Employers Flexibility to Achieve Efficiency and Quality in Management, LD 1351, An Act to Ensure that Membership of Public Employees in Union is Voluntary, and LD 1319, An Act to Ensure that Wages and Benefits of Maine State Employees Serve a Public Purpose.

Because these pieces of legislation have expanded into the private sector, there should be considerable support and opposition for them from the usual suspects. My next chapter will report what happened at the public hearings and when these bills are scheduled for work session.

When Is Telecommuting a Reasonable Accommodation Under the ADA?

Earlier this month, the Sixth Circuit Court of Appeals shared its perspective on this question and held that telecommuting was not a reasonable accommodation for an employee where her essential job duties required regular and frequent in-person contact with suppliers and customers.  In some respects, the court’s conclusion that telecommuting may not be appropriate for jobs requiring regular physical attendance is rather unremarkable.  As the use of telecommuting rises, however, the decision’s common-sense approach to the issue is likely to have a lasting impact.

The employee in the case was a resale buyer who had a severe case of irritable bowel syndrome, which lasted for several years and caused her to be increasingly absent as the years progressed.  Her employer, Ford Motor Company, worked with her during that time to accommodate her condition, including several attempts to accommodate a telecommuting schedule.  Over time, however, her job performance continued to deteriorate.  At one point, she requested to telecommute four days per week.  Ford declined the request but offered other accommodations, including relocating her desk closer to a bathroom.  The employee did not accept the alternative accommodations and Ford later terminated her.

The Equal Employment Opportunity Commission subsequently sued Ford, arguing that the employee’s request for a four-day telecommuting schedule was a reasonable accommodation and that Ford’s denial of the request violated the ADA.  The Sixth Circuit Court of Appeals disagreed. Relying on a “common-sense” approach, the court focused on the highly interactive nature of the employee’s position and found that regular, in-person attendance was an essential function of her job. Although the ADA requires employers to provide reasonable accommodations to qualified employees with disabilities, the court found that the employee in this case was not “qualified” where she could not consistently be on site to perform her job.  Providing a telecommuting accommodation would not have been reasonable because it would not have allowed her to perform the essential interactive duties of her job.

The Sixth Circuit’s decision does not go so far as to hold that telecommuting can never qualify as a reasonable accommodation.  For positions that do not require a high degree of interaction with customers or staff, or that can be performed effectively from a remote location through the use of technology, telecommuting very well may offer a viable accommodation.  Employers should therefore continue to engage with employees requesting telecommuting as an accommodation to determine whether, under the particular facts, the request can reasonably be accommodated.

Are You Ready for a Fast-Track Union Election?

Today the National Labor Relations Board’s (NLRB’s) new representation case procedures take effect.  And as the saying goes, speed kills.

The NLRB announced the new procedures last December and, in doing so, significantly accelerated the time window from the initial filing of an election petition to the election itself.  According to the NLRB, the new procedures also:

• Provide for electronic filing and transmission of election petitions and other documents;
• Ensure that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
• Eliminate or reduce unnecessary litigation, duplication and delay;
• Adopt best practices and uniform procedures across regions;
• Require that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance information sharing by permitting other parties to the election to communicate with voters about the election; and
• Allow parties to consolidate all election-related appeals to the Board into a single appeals process

On April 6, the NLRB’s General Counsel issued a guidance memorandum, which can be accessed here, describing the key modifications embodied in the final rule, which was published at 79 Fed. Reg. 74308.

These new procedures represent an adverse game-changer for employers striving to remain union-free.  Now, once an election petition is filed with the NLRB, employers will have little time to develop effective response strategies.  In theory, an election can be conducted as quickly as 17 days after a petition is filed. 

The days of methodically drafting anti-union messages for distribution to potential bargaining unit members, training supervisors to communicate those messages lawfully and effectively, and analyzing workforce demographics to identify how best to counteract the union’s organizing efforts, in the lead up to an election, are over.   Employers need to proactively develop union avoidance plans and have them ready to implement, long before union organizers show up in your parking lot or their election petition filing is made.